Botros and Secretary, Department of Social Services (Social services second review)
[2020] AATA 106
•4 February 2020
Botros and Secretary, Department of Social Services (Social services second review) [2020] AATA 106 (4 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/2923
Re:Janette Botros
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:4 February 2020
Place:Sydney
The Reviewable Decision is affirmed.
........................[sgd]............................................
Senior Member Linda Kirk
CATCHWORDS
SOCIAL SECURITY – family tax benefit – top-up payment – Applicant’s husband failed to inform the Department that he was not required to file an income tax return – whether Applicant received letter from the Department setting out this requirement – rules relating to service of documents – deemed receipt – whether special circumstances prevented Applicant notifying the Department – decision affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) ss 28A, 29
Evidence Act 1995 (Cth) s 163
A New Tax System (Family Assistance) Act 1999 (Cth) s 21, Sch 1, 3A New Tax System (Family Assistance) (Administration) 1999 Act (Cth) ss 20, 32A, 32C, 32J
CASES
Afghani and Secretary, Department of Social Services (Social services second review) [2017] AATA 410
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov v Centrelink (2003) 75 ALD 134; [2003] FCAFC 133
Graham and Secretary, Department of Social Services (Social services second review) [2019] AATA 2480
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Hollis and Secretary, Department of Social Services (Social services second review) [2015] AATA 941
Hooker and Secretary, Department of Social Services (Social services second review) [2015] AATA 732
Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870
Nicholson and Secretary, Department of Social Services (Social services second review) [2016] AATA 630
Parker and Secretary, Department of Family and Community Services [2004] AATA 1278
Riddell v Secretary, Department of Social Security (1993) 114 ALR 340
Ridden and Secretary, Department of Social Services [2014] AATA 599
Re Repatriation Commission v J S Gordon; R A Arundel and F W Bell Sitting As the Veterans' Review Board and R Bongioletti [1990] FCA 417
Re Rosemarie Beadle and Director-General of Social Security (1984) AATA 176
Secretary, Department of Social Security v Hulls and Others (1991) 22 ALD 570
Secretary, Department of Social Services and Knapp (Social services second review) [2018] AATA 1839
Singleton and Secretary, Department of Social Services (Social services second review) [2019] AATA 766Tirnova and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 589
REASONS FOR DECISION
Senior Member Linda Kirk
4 February 2020
INTRODUCTION AND BACKGROUND
Mrs Janette Botros (‘the Applicant’) seeks a review of a decision of the Administrative Appeals Tribunal, Social Services and Child Support Division (‘AAT1’) on 10 May 2019 affirming a decision that she was not entitled to be paid a family tax benefit (‘FTB’) ‘top up’ payment totalling $266.45 for the 2016/2017 financial year.
During the 2016/2017 financial year, the Applicant received fortnightly payments of FTB totaling $11,654.45.[1] Based on the Applicant’s actual adjusted taxable income, her FTB rate for the 2016/2017 financial year was $11,920.90.[2]
[1] T10, 112.
[2] T10, 114.
In order to be paid the FTB ‘top-up’ amount of $266.45, the Applicant's husband was required to notify the Department, by 30 June 2018, that he was not required to lodge his tax return.[3]
[3] T10, 114.
By a letter dated 23 March 2018 (‘the March 2018 letter’), the Department of Human Services (‘the Department’) wrote to the Applicant advising:[4]
To make sure that you receive your full Family Tax Benefit entitlement, you and your partner need to lodge a 2016-2017 tax return, or tell us that you and/or your partner are not required to lodge a tax return, by 30 June 2018.
[4] T10, 109.
The Applicant notified the Department that her partner was not required to lodge a tax return on 13 September 2018.[5]
[5] T7, 63.
On 13 September 2018, the Department made a decision (‘the Original Decision’) that the Applicant could not be paid a FTB top-up of $266.45 for the 2016/2017 financial year with the effect that her FTB entitlement remained $11,654.45.[6] On 13 September 2018 and 12 December 2018, the Department gave the Applicant notices of that decision which stated:[7]
We are unable to pay your full Family Tax Benefit entitlement, including the Family Tax Benefit supplement because your partner did not confirm their income for the 2016-17 financial year by 30 June 2018.
[6] T10, 114.
[7] T10, 114-117.
The Applicant requested a review of the Original Decision and on 27 February 2019 an Authorised Review Officer affirmed the Original Decision (‘ARO Decision’).[8]
[8] T6, 54-57.
The Applicant sought review of the ARO decision before AAT1. On 10 May 2019, AAT1 affirmed the decision under review (‘the Reviewable Decision’).[9]
[9] T2, 6.
On 27 May 2019, the Applicant applied for review of the Reviewable Decision with the General Division of the Administrative Appeals Tribunal (‘the Tribunal’).[10]
[10] T1, 1-5.
The matter was heard at a hearing in Sydney on 25 November 2019. The Applicant appeared in person and was represented by her husband, Mr Adel Kamel. She was assisted by an interpreter in the Arabic language.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts and Contentions, dated 5 September 2019;
·T documents (T1 to T10, pages 1 – 118) – Exhibit R1; and
·Email from Australia Post to the Applicant regarding the delivery of her mail, dated 27 August 2019 – Exhibit A1.
LEGISLATIVE FRAMEWORK
Family tax benefit eligibility and payment
A person’s entitlement to FTB is governed by section 21 of the A New Tax System (Family Assistance) Act 1999 (Cth) (‘FA Act’) which requires the person to have at least one FTB child and be an Australian resident.
Schedule 1 of the FA Act explains how to calculate the rate of FTB. An entitlement is calculated for the whole financial year, regardless of any changes to a person’s circumstances. Relevantly, an estimate by a person of their adjusted taxable income is used in calculating the rate.
Subsection 3(1) of Schedule 3 to the FA Act provides that a person’s adjustable taxable income includes the adjusted taxable income of their partner.
Subsection 20(1) of the A New Tax System (Family Assistance) (Administration) 1999 Act (Cth) (‘FA Administration Act’) provides that an individual’s eligibility for FTB or rate of FTB may be based on an estimate if information about the amount of an individual's adjusted taxable income needed for its determination is not available because, for example, his or her taxable income or that of another cannot be known until the completion of the relevant income year.
Family tax benefit reconciliation process
Subdivision D of Division 1 of Part 3 of the FA Administration Act sets out FTB reconciliation conditions. The reconciliation process compares the person’s FTB entitlement for the financial year based on their actual adjusted taxable income with the amount the person received during the year based on estimated income. An adjustment takes place where reconciliation shows a difference between the amount of FTB the person received and their correct entitlement.
Section 32A of the FA Administration Act provides that FTB Part A supplement and FTB Part B supplement are to be disregarded unless and until the person satisfies the FTB reconciliation conditions. A ‘further period’ of up to one more financial year is provided for in section 32C and s 32J of the FA Administration Act, if there are ‘special circumstances’ that ‘prevented’ the person from lodging their income tax return before the end of the first financial year.
Section 32C provides that if an individual is a member of a couple and both the individual and their partner were required to lodge a tax return, both must lodge their tax returns within the first income year after the relevant income year. The time may be extended if the Secretary is satisfied there are 'special circumstances' that ‘prevented’ the person from notifying the Department within time.
Section 32C of the FA Administration Act states:
Relevant reconciliation time – first individual must lodge tax return
(1) This section applies to the first individual for a same-rate benefit period if:
(a) the first individual is or was required to lodge an income tax return for the relevant income year; and
………
(3) The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, so long as the first individual’s income tax return for the relevant income year was lodged before the end of:
(a) the first income year after the relevant income year; or
(b) such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year.
(4) The further period under paragraph (3)(b) must end no later than the end of the second income year after the relevant income year. [emphasis added]
Section 32J of the FA Administration Act explains how to determine the reconciliation time for a person who is not required to lodge a tax return for a financial year. The reconciliation time is the time after the end of the financial year when the person notifies the Department of their adjusted taxable income for the financial year but before the end of the following financial year. The time may be extended if the Secretary is satisfied there are 'special circumstances' that 'prevented' the person from notifying the Department within time.
Section 32J provides:
Relevant reconciliation time – individual not required to lodge an income tax return
(1) This section applies to the first individual for a same‑rate benefit period if:
(a) the first individual; or
(b) any other individual whose adjusted taxable income is relevant in working out the first individual’s entitlement to, or rate of, family tax benefit for the same‑rate benefit period;
is not required to lodge an income tax return for the relevant income year.
(2) The relevant reconciliation time is whichever is the earlier of the following times:
(a) the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual’s adjusted taxable income for the relevant income year, so long as that notification occurs before 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 first individual from making that notification before the end of that first income year;
(b) the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual, so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year.
(3) The further period under subparagraph (2)(a)(ii) must end no later than the end of the second income year after the relevant income year [emphasis added].
Deemed receipt of documents
Section 28A of the Acts Interpretation Act 1901 (Cth) (‘AI Act’) governs the service of documents for the purposes of Commonwealth legislation:
Part 6 – Service of documents
28A Service of documents
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
Section 29 of the AI Act provides:
Meaning of service by post
(1) Where an Act authorises 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.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995 (emphasis added).
Subsection 163(1) of the Evidence Act 1995 (Cth) (‘Evidence Act’) provides:
Proof of letters having been sent by Commonwealth agencies
A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared (emphasis added).
ISSUES FOR DETERMINATION
The issues for determination by the Tribunal are as follows:
(a)Was the March 2018 letter deemed to be received by the Applicant?
(b)Are there ‘special circumstances’ that ‘prevented’ the Applicant and her husband from notifying the Department that they were not required to lodge their tax returns for the 2016/2017 financial year by 30 June 2018?
EVIDENCE AND SUBMISSIONS
Applicant
The Applicant’s husband told the Tribunal that they have been receiving FTB for their three children for approximately 20 years. Every year he is sent a letter by Centrelink as a reminder to advise it of his situation.[11] However, he did not receive the March 2018 letter.[12] He confirmed that the March 2018 letter was addressed to the correct address.[13] He has been at the same address for 30 years and in the last four or five years he has had problems with the delivery of mail by Australia Post to his address.[14]
[11] Transcript, p13.
[12] Transcript, p5.
[13] Transcript, p7.
[14] Transcript, p13.
The Applicant’s husband contacted Australia Post to complain about not receiving letters on 6 March 2017, 29 January 2018 and 6 July 2018.[15] He told the Tribunal he has complained to Australia Post four or five times by phone.[16]
[15] T4, 49.
[16] Transcript, p15-16.
On 27 August 2019, he received the following response from Australia Post:[17]
Update for General Enquiry - 27146340
As per your request I can confirm you have lodged numerous complaints regarding the delivery of your letters to your letterbox. The earliest complaint regarding the delivery of your mail I was able to locate is dated for the 6/03/2017 case no. 10095768. Please be advised this is not a comprehensive check.
I can confirm Australia Post has received numerous complaints and has lodged several investigations into the delivery of your mail, in response we have spoken with your Postal Delivery Officers and have put in place mail monitors for your address to ensure your mail is delivery (sic) properly.
As per your request, it is possible for mail to go missing before it reaches a Postal Delivery Officer. This can be due to sorting machine problems, potential addressing issues and issues beyond Australia Post's control. As regular mail does not have a tracking number we cannot investigate the nature of (sic) when these issues occur, however we have spoken to our staff numerous times to ensure it is delivered correctly across the years you have reported issues.
Please be advised it may not have been the same Postal Delivery Officer that delivered your mail in all instances.
[17] Email from Australia Post to the Applicant, dated 27 August 2019 – Exhibit A1.
The Applicant argues that there is no evidence that the letter was sent from Centrelink and it could have been lost before it reached Australia Post.[18] Centrelink should have sent an automatic follow-up reminder after the March 2018 letter.[19]
[18] Transcript, p15-16.
[19] Transcript, p20.
Respondent
The Respondent contends that the Applicant's husband was required to notify the Department that he was not required to lodge a tax return by 30 June 2018. The Applicant was taken to have received the March letter informing her of this requirement.[20]
[20] Respondent’s SFIC, [21].
The Applicant’s husband confirms that the March 2018 letter was correctly addressed. It was sent by the Respondent by pre-paid post to that address.[21] Section 29 of the AI Act deems the letter to be received. The onus is on the Applicant to prove that the contrary applies.[22] The Applicant has not produced evidence to displace the presumption of service of the March letter.[23] The Applicant is deemed to have received the March letter.[24]
[21] Respondent’s SFIC, [25].
[22] Respondent’s SFIC, [26].
[23] Respondent’s SFIC, [30]
[24] Respondent’s SFIC, [31]
There are no ‘special circumstances’ that ‘prevented’ the Applicant and her husband from notifying the Department that they were not required to lodge their tax returns for the 2016/2017 financial year by 30 June 2018.[25] Therefore the discretion to allow more time in paragraph 32J(2)(a)(ii) of the FA Administration Act cannot apply.[26]
[25] Respondent’s SFIC, [35]-[41]
[26] Respondent’s SFIC, [35]
CONSIDERATION AND REASONS
The following facts are not in dispute in this case:
·The Applicant was eligible to receive FTB during the 2016/2017 financial year;
·The Applicant received fortnightly payments of FTB totalling $11,654.45 during the 2016/2017 financial year;
·Based on the actual combined taxable income of the Applicant and her husband, the Applicant was entitled to receive FTB payments totalling $11,920.90 for the 2016/2017 financial year;
·The Department wrote to the Applicant by way of the March 2018 letter advising her that she and/or her husband must lodge their 2016/2017 tax return or advise it that she and/or her husband are not required to lodge a tax return, by 30 June 2018;
·The Applicant did not receive the March 2018 letter; and
·The Applicant notified the Department that her husband was not required to lodge a tax return on 13 September 2018.
(a) Was the March 2018 letter deemed to be received by the Applicant?
It is not in dispute that the Applicant did not receive the March 2018 letter. The Applicant's husband confirmed that the March 2018 letter was correctly addressed to his and the Applicant’s home address. The Respondent’s records record that the letter was sent to the Applicant by pre-paid post to that address.[27]
[27] T4, 51.
The issue for determination is whether, despite the non-receipt by the Applicant of the March 2018, she is deemed by law to have received it.
The effect of sections 28A and 29 of the AI Act is that a letter is taken to be given to a recipient ‘if it is sent by pre-paid post to the address last known to the sender of the document’. This is so regardless of whether or not the recipient received the letter. This was explained in Nicholson and Secretary, Department of Social Services (Social services second review) [2016] AATA 630, where the Tribunal held (at [16]-[17]):
16. The Applicant indicated in her sworn evidence, and I have absolutely no reason to disbelieve her, that for whatever reason she did not receive those notifications, or indeed if she did, had no recollection of having received them. Unfortunately, that does not help in these circumstances. In the SSCSD's reviewable decision of 8 October 2015, Member Leonard stated, at [23]:
When considering the receipt of notices of decisions related to family assistance law, section 224 of the [Social Security] Administration Act says the tribunal must determine that a notice of decision has been received, if it has been sent by pre-paid post, to the address last notified to Centre/ink. As the letter dated 19 March 2014 was not a notice of decision this section does not apply; however, sections 28A and 29 of the Acts Interpretation Act 1901 are expressed in similar terms and provide that a document is "served" or "given" or "sent" to a person if it is sent by pre-paid post to the address last known to the sender of the document.
17. The Applicant confirmed the letter was correctly addressed and so the Tribunal finds the letter was given to the Applicant in accordance with sections 28A and 29 of the Acts Interpretation Act 1901.
Section 163(1) of the Evidence Act further provides that a letter from a Commonwealth agency addressed to a specific address is presumed to have been sent by pre-paid post to that address on the fifth business day after that date, unless there is evidence adduced to raise doubt about this presumption: Ridden and Secretary, Department of Social Services [2014] AATA 599 at [45]; Tirnova and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 589.
Section 29 of the AI Act provides that the deeming provisions apply 'unless the contrary is proved'. In other words, if the deeming provision is satisfied, the onus then shifts to the Applicant to prove that the contrary applies. In Parker and Secretary, Department of Family and Community Services [2004] AATA 1278 (‘Parker’) at [23] the Tribunal explained:
Section 29 provides that the deeming provision applies, ‘unless the contrary is proved’. In other words, if the deeming provision is satisfied, the onus then moves to the applicant to prove that the contrary applies. This can be achieved by providing substantial evidence that outweighs the statutory presumption, for example, by illness, demonstrating mail has been lost or stolen. Where an applicant relies on this part of the provision to prove evidence contrary to the presumption, then that person must have done all that could reasonably be expected to have been done by that person to ensure that their mail comes to their attention [emphasis added].
In Repatriation Commission v Gordon [1990] FCA 417, Spender J commented on the effect of section 29 of the AI Act:
50. In my opinion, in relation to the deeming provision in the section to the time at which service was effected, the qualification "until the contrary is proved" is not restricted to proving a time of delivery different from the ordinary time at which the letter would be delivered, but encompasses proof that the letter was never delivered at all. Of course, any such claims would have to be very carefully scrutinised and the mere claim of non-receipt would be likely to be insufficient. Non-receipt is not the same as non-delivery.
51. In the view I take of s. 29, there is a statutory presumption that what is proved to have been properly despatched by post arrived at the usual time, but that non- delivery at that time, or non-delivery at all, might be proved by evidence. If this construction of s. 29 is not correct, proof of posting would be sufficient to prove service, even in cases where after posting it could be proved that the posted letter had been destroyed before delivery [emphasis added].
The Tribunal is satisfied on the evidence before it, specifically the Respondent’s records, that the March 2018 letter was sent by pre-paid post to the Applicant’s correct address. The Applicant therefore bears the onus of establishing, on the balance of probabilities, that there was no delivery of the March 2018 letter.
The Tribunal is not satisfied that the Applicant has produced evidence to displace the presumption of service of the March 2018 letter. The Applicant has provided evidence that complaints were made by her husband to Australia Post in relation to the non-receipt of mail at their address on 6 March 2017, 29 January 2018 and 6 July 2018. Whereas Australia Post acknowledges that complaints were received and investigations occurred, it does not state that it identified instances of non-delivery of mail to the Applicant’s address, including of the March 2018 letter. The email dated 27 August 2019 from Australia Post to the Applicant is not evidence of the non-delivery of the March 2018 letter. The Applicant’s husband’s evidence of non-receipt of the March 2018 letter, which the Tribunal accepts, is not evidence of non-delivery for the purposes of section 29 of the AI Act: Lambert and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 870 at [30]. The Tribunal is not satisfied that the Applicant has met the test outlined in Parker, namely that she has provided ‘substantial evidence that outweighs the statutory presumption’.
In these circumstances, the Tribunal cannot be satisfied there is evidence that displaces the effect of section 29 of the AI Act. Accordingly, the Applicant is, by operation of law, deemed to have received the March 2018 letter.
(b) Are there ‘special circumstances’ that ‘prevented’ the Applicant and her husband from notifying the Department that they were not required to lodge their tax returns for the 2016/2017 financial year by 30 June 2018?
The period for lodging a tax return or informing the Department that a tax return is not required to be lodged may be extended where there are 'special circumstances' that 'prevented' the person from lodging a tax return or informing the Department a tax return was not required to be lodged by the end of the financial year: sections 32C and 32J of the FA Administration Act.
The Respondent contends that there are no 'special circumstances' that 'prevented' the Applicant and her husband from notifying the Department that they were not required to lodge their tax returns for the 2016/2017 financial year by 30 June 2018.
The expression ‘special circumstances’ is not defined in the FA Administration Act. However, it has been extensively considered by the Federal Court and the Tribunal in the social security and family assistance law context.
In Dranichnikov v Centrelink (2003) 75 ALD 134; [2003] FCAFC 133, the Full Court outline at [66] what is required:
…what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary.
The Tribunal considered the phrase in Re Rosemarie Beadle and Director-General of Social Security (1984) AATA 176 at [12] (‘Beadle’). It stated:
[12] 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.
Beadle was referred to by Kiefel J (as her Honour then was) in Grothv Secretary, Department of Social Security (1995) 40 ALD 541 (‘Groth’) at 545 in the following terms:
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.
These authorities recognise that the term is ‘by its very nature incapable of precise or exhaustive definition’,[28] but it requires something to distinguish it from other cases in a way ‘to take it out of the usual or ordinary case’.[29] Furthermore, ‘each particular case must be considered on its merits’.[30] This may be to such an extent that ‘the particular facts of a case might make them – or the amount of them – a special circumstance’.[31] The decision-maker must show there was ‘a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system’.[32]
[28] Re Beadle and Director-General of Social Security [1984] AATA 176 at [12].
[29] Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at [545].
[30] Riddell v Secretary, Department of Social Security (1993) 114 ALR 340 at [347].
[31] Secretary, Department of Social Security v Hulls and Others (1991) 22 ALD 570 at [580].
[32] Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114 at [80].
In addition to establishing there were ‘special circumstances’, there is a requirement that these ‘prevented’ the Applicant from informing the Department in relation to the tax returns by the relevant date, namely 30 June 2018.
In Hooker and Secretary, Department of Social Services (Social services second review) [2015] AATA 732, the Tribunal considered section 10(2)(b)(ii) of the FA Administration Act (late lodged lump sum claim for family tax benefit) which has the same time limits and ‘special circumstances’ provision as section 32C of the FA Administration Act. SM Toohey stated:
14. 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.
…
19. 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 [emphasis added].
The passage was cited with approval by DP Humphries in Hollis and Secretary, Department of Social Services (Social services second review) [2015] AATA 941 at [30]-[31]. DP Humphries concluded:
31. Thus, in order for the time for making a claim to be extended, the Secretary (and in turn the Tribunal) must be satisfied of two things: first, that circumstances existed that were special and, secondly, that those special circumstances prevented the claimant from making her claim within time [emphasis added].
In Afghani and Secretary, Department of Social Services (Social services second review) [2017] AATA 410 at [62], the Tribunal had regard to the dictionary definition of ‘prevent’ and observed that the requirement was for the special circumstances to ‘hinder’ or ‘stop’ lodgment of the tax return by the relevant date. In Singleton and Secretary, Department of Social Services (Social services second review) [2019] AATA 766, the Tribunal stated at [42]:
'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 time frame' [emphasis added].
The Applicant’s evidence is that it was the non-receipt of the March 2018 letter that prevented her from advising the Department that she and her husband were not required to lodge tax returns for the 2016/2017 financial year before 30 June 2018.
On the evidence before it, the Tribunal cannot be satisfied that the non-receipt of the March 2018 letter by the Applicant amounted to ‘special circumstances’ that ‘prevented’ her from notifying the Department in relation to the lodgement of her and her husband’s 2016/2017 tax returns. Whereas the Tribunal accepts the evidence that the March 2018 letter was not received by the Applicant, she has not demonstrated that there were ‘unusual, uncommon or exceptional’ circumstances that prevented her from notifying the Department in relation to the lodgment of the tax returns. The non-receipt of the March 2018 letter, reminding the Applicant of this requirement, is not a circumstance that meets the tests articulated in the authorities required for it to be ‘special’. Furthermore, the non-receipt of the letter did not present an ‘insurmountable block, hindrance or impediment’ such that she could be said to have been ‘prevented’ from notifying the Department as required.
The evidence before the Tribunal is that the Applicant and her husband were familiar with the requirement that the Department be informed every year of whether or not a tax return was lodged or not required to be lodged for the financial year. Accordingly, despite not being made aware of the requirement for the 2016/2017 financial year due to the non-receipt of the March 2018 letter, the Applicant did have knowledge of this by reason of past practice over a period of many years of receiving FTB. Even in circumstances where the Applicant was not aware of the requirement to notify the Department of the lodgement of her and her husband’s tax returns, the lack of awareness of this requirement does not amount to ‘special circumstances’: Graham and Secretary, Department of Social Services (Social services second review) [2019] AATA 2480 at [15].
Accordingly, the Applicant cannot satisfy the two-part test in section 32J(2)(a)(ii) of the FA Administration Act that there were ‘special circumstances’ which ‘prevented’ her from notifying the Department that her husband was not required to lodge a tax return for the 2016/2017 income year. In these circumstances, the discretion to extend time in paragraph 32J(2)(a)(ii) of the FA Administration Act cannot apply: Secretary, Department of Social Services and Knapp (Social services second review) [2018] AATA 1839.
CONCLUSION
For the above reasons, the Tribunal finds that as the Applicant did not notify the Department that her husband was not required to lodge a tax return for the 2016/2017 income year by 30 June 2018, and there were no ‘special circumstances’ which ‘prevented’ her from doing so, the Applicant is not entitled to the FTB ‘top up’ payment of $266.45 for the 2016/2017 income year.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
............................[sgd]........................................
Associate
Dated: 4 February 2020
Date(s) of hearing: 25 November 2019 Advocate for the Applicant: Mr A Kamel Solicitors for the Respondent: Mr A Gardner, Department of Human Services
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