Brinkworth and Secretary, Department of Social Services (Social services second review) - [2020] AATA 3133

Brinkworth and Secretary, Department of Social Services (Social services second review) [2020] AATA 3133 (25 August 2020)
Division:GENERAL DIVISION
File Number: 2019/6117
Re:Selena Brinkworth
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:25 August 2020
Place:Perth

The decision of the Authorised Review Officer dated 1 May 2019, as affirmed by the AAT1 on 5 September 2019, is affirmed.
....................[Sgd]....................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – family tax benefit (FTB) – schoolkids bonus (SKB) – late lodgement of tax return – whether the Applicant was overpaid FTB and SKB during the 2014/2015 income year – whether Applicant required to lodge an income tax return – tax loss – Applicant’s assessable income below tax free threshold – whether timeframe for lodging income tax return can be extended – whether special circumstances prevented Applicant from lodging 2014/2015 tax return – whether overpayment a legally recoverable debt – whether recovery of all or part of the debt should be waived or written off – whether debt attributable to sole administrative error by the Commonwealth – reviewable decision affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) – ss 21, 35UA
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) – ss 5(1), 7(2)(a)(i), 10, 10(2)(b), 14A, 14A(1), 14A(2), 14A(4), 71(1), 97, 101
Income Tax Assessment Act 1936 (Cth) – s 161(1)
Income Tax Assessment Act 1997 (Cth) – 36-1, 36-10, 36-10(1), 36-10(2)
Income Tax Rates Act 1986 (Cth) – s 3(1)
Minerals Resource Rent Tax Repeal and Other Measures Act 2014 (Cth)
CASES
Afghani and Secretary, Department of Social Services [2017] AATA 410
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle and Director-General of Social Security (1984) 6 ALD 1
Bondzulic and Secretary, Department of Social Services [2017] AATA 455
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Dranichnikov v Centrelink (2003) 75 ALD 134
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Hooker and Secretary, Department of Social Services [2015] AATA 732
Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173

Scott and Another v Secretary, Department of Social Security (2000) 65 ALD 79
Secretary, Department of Social Services and Cannon [2015] AATA 1028
Secretary, Department of Social Services and Field [2015] AATA 903
Secretary, Department of Social Services and Hollis [2015] AATA 941

Shanhun; Secretary, Department of Social Services [2016] AATA 675
SECONDARY MATERIALS
Australian Taxation Office, Individual Tax Return Instructions 2015: To help you complete your tax return 1 July 2014 – 30 June 2015 (June 2015)
Australian Taxation Office, Lodgement of returns for the year of income ended 30 June 2015 in accordance with the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Taxation Administration Act 1953, the Superannuation Industry (Supervision) Act 1993 and the Income Tax (Transitional Provisions) Act 1997 (TPAL 2015/2, 4 June 2015)
Guides to Social Policy Law, Family Assistance Guide
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
25 August 2020
OVERVIEW

The Applicant is seeking review of a decision of the Social Services & Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) dated 5 September 2019 (T2) (AAT1 Decision).
The AAT1 Decision affirmed a decision of an Authorised Review Officer (ARO) of the Department of Human Services, now called Services Australia, (Centrelink) dated
1 May 2019 (ARO Decision) (T18). The ARO Decision affirmed earlier decisions of Centrelink to raise and recover debts for the overpayment of family tax benefit (FTB) and schoolkids bonus payment (SKB) for the 2014/2015 income year.
It is the ARO Decision, as affirmed by the AAT1 Decision, that is the Reviewable Decision currently before the General Division of the Tribunal (AAT2).
BACKGROUND TO THE APPLICATION
The Applicant lodged an online lump sum claim for FTB on 3 September 2015 (T8). In this form the Applicant declared that “I have not yet lodged a tax return and I do not intend to do so because my income was below the tax free threshold” (T8/120).
On 6 November 2015 (T26/278), Centrelink paid the Applicant a lump sum of $20,590.50, after reconciling her FTB for the 2014/15 income year. This sum was comprised of $19,746.50 FTB and $844 SKB (T19/155; T10/123).
On 18 May 2016 (T26/278) the Applicant was also paid a lump sum of $15,821.91 for the 2015/16 income year, which included a SKB of $1,280 (T19/155; T26/278) after a reconciliation of her FTB for that income year (T19/155).
On 15 December 2016 the Applicant and her husband engaged Mansell & Associates to act as their tax agents to prepare their income tax returns for the 2015/2016 income year (T1/3).
On 17 March 2017 the Australian Taxation Office (ATO) advised Centrelink that on
7 February 2017 the Applicant lodged a tax return for the 2014/2015 income year (T27/342). This tax return claimed a “[n]et rental property loss” for the Applicant of $5,800 (Exhibit R2, Annexure A, page 3 of 7) with respect to a rental property jointly owned by the Applicant and her husband.
Centrelink then reconciled the Applicant’s FTB with the details in her tax return and on
17 March 2017 decided to raise a debt of $94.90 against the Applicant for being overpaid FTB in the 2014/2015 income year (T13/131).
However, on 29 September 2018, Centrelink increased the FTB debt to $19,746.50 (T14/135). The basis for this decision was that the Applicant had lodged her income tax return for the 2014/2015 income year after the 30 June 2016 deadline, which meant that she was not entitled to any FTB payment (T27/342).
Additionally, on 29 September 2018 Centrelink decided to raise a further debt against the Applicant for $1,266 of SKB she was paid for the 2014/2015 income year because she was not entitled to FTB for that income year (T14/139).
This meant that the total amount of the debt raised against the Applicant was $21,012.50.
On 12 October 2018 Centrelink withheld the FTB lump sum of $5,289.42 for the income year ending 2017/2018 to partly repay this debt (T27/342).
As noted in the overview section above, the ARO Decision of 1 May 2019, affirmed the earlier decisions of Centrelink to raise and recover the debt of $21,012.50 for the overpayment of FTB and SKB in the 2014/2015 income year (T18/146). The ARO found that there was no basis for the debt to be waived or written-off (T18/149-150).
As noted above, on 5 September 2019 the AAT1 affirmed the ARO Decision.
On 26 September 2019, the Applicant applied for a further review by the AAT2 (T1).
ISSUES
The issues for determination by the Tribunal are:
(a)whether the Applicant was overpaid FTB (and consequently SKB) during the 2014/2015 income year. This requires consideration of whether an effective claim for FTB was made, including:
(i)whether the Applicant was required to lodge an income tax return for the 2014/2015 income year;
(ii)if so, whether it was lodged within time; and
(iii)if not, whether the timeframe for lodgement can be extended.
(b)if the Applicant was overpaid FTB and SKB, whether any overpayment constitutes a legally recoverable debt; and
(c)whether recovery of all or part of the debt should be waived or written off.
MATERIAL BEFORE THE TRIBUNAL
This application was heard on 16 June 2020.
The Secretary was represented by Ms Dinkha, and the Applicant was represented by her accountant, Mr Mansell.
The hearing proceeded based on submissions and so the Applicant did not give evidence.
The Tribunal admitted the following material into evidence at the hearing:
(a)Secretary’s s 37 Documents (T-documents) numbered T1 to T27, comprising 347 pages (Exhibit R1);
(b)Secretary’s Statement of Issues, Facts and Contentions with Annexures A to C, undated and filed on 7 February 2020 (Exhibit A2); and
(c)Secretary’s Supplementary submissions dated 28 May 2020 with attached Annexure 1 (Exhibit R3).
RELEVANT LEGISLATION
The relevant legislation is:
(a)A New Tax System (Family Assistance) Act 1999 (Cth) (the Act);
(b)A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (Administration Act); and
(c)Income Tax Assessment Act 1997 (Cth) (Income Tax Assessment Act).
The applicable policy is the Guide to Social Policy Law, Family Assistance Guide (the Guide).
WAS THE APPLICANT OVERPAID FTB AND SKB DURING THE 2014/2015 INCOME YEAR?
An individual is eligible to receive FTB if they have at least one child in their care, if they are an Australian resident, and their rate of FTB is greater than nil (s 21 of the Act).
Section 35UA of the Act set out the eligibility requirements for the SKB. That section was applicable to the 2014/2015 income year. It is no longer in operation because the SKB ceased on 31 December 2016, as provided for in the Minerals Resource Rent Tax Repeal and Other Measures Act 2014 (Cth). The section provided that an individual is eligible for SKB if, on the bonus set day (1 January or 1 June of the relevant year), they are eligible for FTB, and they are entitled to an FTB Part A rate greater than nil.
Section 5(1) of the Administration Act provides that “[t]he only way that a person can become entitled to be paid family tax benefit is to make a claim…”.
According to s 7(2)(a)(i) of the Administration Act, to be effective the claim must, amongst other things, be “made in a form and manner” required by the Secretary.
Section 10 of the Administration Act sets out restrictions on claims for a payment of FTB for a past period. One of these restrictions is set out in s 10(2)(b) of the Administration Act which provides:
(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.
In this application the relevant income year was the 2014/2015 income year, ending on

30 June 2015. The first income year after the relevant income year was the year ending

30 June 2016. Thus, the Applicant was required to make her claim for FTB before

30 June 2016, which she did. As noted above, she lodged her claim for FTB on

3 September 2015.
Was the Applicant required to lodge an income tax return?
However, ss 14A(1) and (2) of the Administration Act provides that a claim for FTB for a past period is taken never to have been made if an individual was “required to lodge an income tax return” by the end of the income year immediately following that income year and has not lodged the return. That is, if the Applicant was required to lodge an income tax return for the 2014/2015 income year, s 14A provides that the deadline for doing so would be 30 June 2016, otherwise the claim is deemed never to have been made.
This is reflected in the relevant policy, being the Guide, which provides (at 6.4.3) that:
Lodge an income tax return within 12 months of entitlement
An individual claiming FTB (and/or their partner), is required to lodge an income tax return or inform Centrelink if it is determined that they are not required to lodge, within 12 months following the income year in which they received a payment (1.1.I.75).
Where an individual (and/or their partner) lodges an income tax return or informs Centrelink they are not required to lodge, the individual's payments for the income year are reconciled…
Advise not required to lodge an income tax return within 12 months of entitlement
An individual who receives FTB (and/or their partner) is required to notify Centrelink they are not required to lodge an income tax return, if they are not required to do so, within 12 months from the end of the relevant income year.
Where an individual (and/or their partner) informs Centrelink they are not required to lodge, the individual must provide a declaration of their (and/or their partner's) ATI for the relevant income year which Centrelink determines to be reasonable in order for their payments to be reconciled.
Further, the Guide (at 6.4.3) continues to explain that if a person fails to lodge their tax return, a debt will be raised:
Non-lodger debt is raised if income tax return is not lodged or Centrelink are not advised of not required to lodge
If an individual (and/or their partner) fails to lodge an income tax return or fails to inform Centrelink that they (and/or their partner) are not required to lodge an income tax return by the end of the lodgement year (1.1.L.30), a non-lodger debt will be raised. The debt will comprise any FTB they received in the year for which they have not lodged an income tax return or advised they are not required to lodge…
As noted above, in her claim for FTB, the Applicant advised Centrelink that she was not required to lodge an income tax return, and her FTB was reconciled on that basis, with the payment of $20,590.50 being made on 6 November 2015 for the 2014/2015 income year.
As was also explained above, the Applicant engaged new accountants on

15 December 2016. Following their advice about claiming deductions for depreciation on a rental property jointly owned by the Applicant and her husband, she lodged an income tax return for the 2014/2015 income year on 7 February 2017, being seven months and nine days after the end of the income year immediately following (30 June 2016).
This raises the question of whether the Applicant was “required” to lodge an income tax return for the 2014/2015 income year by 30 June 2016.
Mr Mansell argued that the Applicant was not required to lodge an income tax return for the 2014/2015 income year, but left the determination of that question to the discretion of the Tribunal and did not make any specific submissions as to why the Applicant was not required to lodge an income tax return (transcript/4).
Ms Dinkha submitted that the Applicant was “required” to lodge an income tax return for the 2014/2015 income year because the Applicant incurred a tax loss in that year. The Secretary’s submissions on this issue were extensive, with Exhibit R3 containing a very detailed analysis of provisions of the Income Tax Assessment Act and relevant policies.
In summary, the Tribunal agrees with the Secretary’s submissions that a “tax loss” is appropriately worked out under s 36-10 of the Income Tax Assessment Act.
Section 36-1 of the Income Tax Assessment Act, under the heading, “[w]hat this Division is about”, explains, “[i]f you have more deductions for an income year than you have income, the difference is a tax loss”.
Section 36-10 of the Income Tax Assessment Act provides, in part:
How to calculate a tax loss for an income year
(1)Add up the amounts you can deduct for an income year (except *tax losses for earlier income years).
(2)Subtract your total assessable income.
…
Applying the steps in s 36-10(1) and (2), in the Applicant’s income tax return for the 2014/2015 income year, she claimed deductions totalling $20,867 and an assessable income of $11,353. When the amount of assessable income is subtracted from the amount of the deductions, this leaves a tax loss of $9,514.
A legislative instrument made by the Deputy Commissioner of Taxation under s 161(1) of the Income Tax Assessment Act 1936 (Cth), namely the Australian Taxation Office, Lodgement of returns for the year of income ended 30 June 2015 in accordance with the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Taxation Administration Act 1953, the Superannuation Industry (Supervision) Act 1993 and the Income Tax (Transitional Provisions) Act 1997 (TPAL 2015/2, 4 June 2015) (ATO Instrument) (Exhibit R2, Annexure B) prescribes specific circumstances where a person is required to lodge a tax return for the 2014/2015 income year. Specifically, the ATO Instrument provides:
In accordance with section 161 and related provisions of the Income Tax Assessment Act 1936 I require every person described in Tables A, B, C, D, E, F, G, H, I, J, K or L to give me a return of income for the year of income ended 30 June 2015 (or approved period in lieu).
…
Table A
Every person not covered by Tables N or O who during the year of income:
…
2. incurred a tax loss or made a net capital loss or is entitled to deduct a tax loss or apply a net capital loss of an earlier year of income, or being a company or trust estate has undeducted tax losses or unapplied net capital losses of any earlier year of income where those losses exceed $1,000 or, being a company, transfers a tax loss or net capital loss to another group company; or
…
(Underlining added.)
The Applicant’s assessable income was below the tax-free threshold of $18,200 (as defined by s 3(1) of the Income Tax Rates Act 1986 (Cth), compilation No 42) which came into effect on 25 June 2015). The Secretary submitted that the ATO Instrument does not, however, state that a person is not required to lodge a tax return if their income was below the

tax-free threshold of $18,200 and they incurred a tax loss. The Tribunal agrees and observes that neither do the ATO’s Individual Tax Return Instructions 2015: To help you complete your tax return 1 July 2014 – 30 June 2015 (June 2015) (the Instructions). Indeed, page 5 of the Instructions, titled, “[d]o you need to lodge a tax return?” state:
You must lodge a tax return if any of the following applied to you:
…
·You made a loss or you can claim a loss you made in a previous year…
Accordingly, the Tribunal finds that the Applicant was required to lodge a tax return for the 2014/2015 income year because she made a tax loss in that income year. This means that the Applicant was required to lodge her tax return by 30 June 2016 in order to be entitled to FTB (and consequently SKB) for the 2014/2015 income year.
However, the Applicant was not entitled to FTB and SKB because she lodged her income tax return for the 2014/2015 income year on 7 February 2017, which was past the

30 June 2016 deadline.
Can the timeframe for lodging the Applicant’s income tax return be extended?
Pursuant to s 14A(1) of the Administration Act, if a claim is not made within time, it is “taken never to have been made”. However, pursuant to s 14A(2) and (4) of the Administration Act the Secretary has a discretion to extend the timeframe for lodging an income tax return for a further period ending “no later than the end of the second income year after the past period income year” (that is, by 30 June 2017) “if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the return before the end of that first income year” (Emphasis added).
In Shanhun; Secretary, Department of Social Services [2016] AATA 675, Member Morris explained, at [37]-[38]:
37.… the two essential ingredients to be satisfied, to my mind, must be that (1) the special circumstances exist; and (2) that these special circumstances acted to prevent the individual – the taxpayer claiming the benefit – from lodging his or her return on time.
38.In looking at the meaning of this complete clause in the Administration Act, in the absence of a statutory definition, the Tribunal must look at the ordinary, everyday meaning of the word “prevent”. The Oxford English Dictionary definition of “prevent” is: ‘stop [someone] from doing something. The Macquarie Dictionary defines “prevent” as: “to keep from occurring; to hinder (a person, etc.) from doing something”.

As noted by Member Morris, the Tribunal must be satisfied firstly that there were special circumstances, and secondly that those special circumstances prevented the person from lodging their tax return by the due date. In Hooker and Secretary, Department of Social Services [2015] AATA 732 (Hooker), Senior Member Toohey stated, at [14], that:
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.
In Hooker, Senior Member Toohey continued to say that (at [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 in original.)
This paragraph from Senior Member Toohey’s decision in Hooker was cited with approval by Deputy President Humphries in Secretary, Department of Social Services and Hollis [2015] AATA 941 at [30]-[31].
The two-step process was also explained by Senior Member Cotter in Bondzulic and Secretary, Department of Social Services [2017] AATA 455 who stated at [38]:
However, where ss 32C (3)(b) and 32D (1)(c)(ii) of the Administration Act differ is in the deliberate inclusion of language that imposes an additional requirement about which the Secretary (or in this case, the Tribunal) has to be satisfied before the relevant period can be extended: special circumstances need not only exist, they must also have prevented the FTB recipient from lodging the tax returns before the end of the first income year following the financial year in question. As SM Toohey observed in Hooker, that two-part test is a stringent one.
(Emphasis in original.)
In summary, the Tribunal must consider two separate questions. Firstly, whether there were special circumstances, and secondly, whether those special circumstances prevented the recipient of the benefit (in this case FTB and SKB) from lodging their tax return in the required time.
Special circumstances
With respect to special circumstances, neither the Act nor the Administration Act defines “special circumstances”. However, the meaning has been considered by the Federal Court and the Tribunal in numerous decisions.
In Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3, 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.
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J (as she then was) stated, at 545:
The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case... and for present purposes 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…
(Citations omitted.)
French J, in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 stated at 536 [18] that:
The core of the requirement for ‘special circumstances’ or ‘special reasons’ is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course… But that does not require that the case be extremely unusual, uncommon or exceptional…
(Citations omitted.)
In a decision of the Full Court of the Federal Court, Dranichnikov v Centrelink (2003) 75 ALD 134, Hill J said the following about what is required for there to be “special circumstances” at 148 [66]:
…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…
In Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9, at 17–18 [33] Besanko J stated, after reviewing the case law on the meaning of “special circumstances” that:
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. 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. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
The concept of “special circumstances” was also summarised in Hooker by Senior Member Toohey at [15]:
The meaning of special circumstances for the purposes of social security law has been considered by the Tribunal and the courts on many occasions. It is an expression ‘by its very nature incapable of precise or exhaustive definition’ and its meaning will depend on the context in which the circumstances occur. The circumstances need not be unique ‘but they must have a particular quality of unusualness that permits them to be described as special’: Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3; see also, for example, Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541.
As noted by Deputy President Constance in Secretary, Department of Social Services and Cannon [2015] AATA 1028 (Cannon) at [17]-[18], ignorance of the law will not constitute special circumstances:
As a matter [of] general principle, ignorance of the law is no excuse for a person’s failure to comply with it. In addition, there is no legal obligation on the Secretary or any Government Department to advise potential claimants of changes in the law which may adversely affect them.
On this basis I am satisfied that Ms Cannon’s lack of awareness of the changed law does not amount to special circumstances within the meaning of the Act. I note that this is consistent with the approach previously taken by the Tribunal.
(Footnotes omitted.)
In Secretary, Department of Social Services and Field [2015] AATA 903 (Field), at [28], Deputy President Forgie expanded upon the Secretary not being required to advise claimants about their legal entitlements or about the social security law:
Having regard to these principles, there is nothing in s 8(1) that would oblige the Secretary to inform each recipient, or potential recipient, of benefits under the social security law of the law and changes in the law affecting any particular payment. That would not be an achievable outcome given the great variety of circumstances in which recipients, or potential recipients, find themselves. The Secretary is not to know whether recipients, or potential recipients, will wish to lodge a claim for FTB in any particular income year. She will not know their particular circumstances before they lodge any claim that they may make. What the SAA Act does require under
s 8(1)(i) is that, in establishing the systems and procedures required to administer social security law, the Secretary have regard to the desirability of there being ready availability of advice and information relating to income support generally and to the social security payments that are available. There is no requirement that she give written information to recipients, or potential recipients, under the social security law.
(Original emphasis.)
In Field, at [29], Deputy President Forgie also summarised the common law position, which was set out in the Federal Court decision of Scott and Another v Secretary, Department of Social Security (2000) 65 ALD 79 (Scott):
Putting aside the legislative provisions and turning to the common law, Beaumont and French JJ decided in Scott and Another v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79 that there is:
“[20] ... no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act.
...
[23] ... It is one thing to expect a department (reasonably) to communicate accurately the general range of benefits available; it is another to expect the department to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances.”
(Footnotes omitted.)
In summary, the Tribunal must be satisfied that the circumstances are so unusual, uncommon or exceptional that the Applicant’s circumstances qualify as giving rise to special circumstances, which would justify the exercise of discretion to extend the timeframe for lodging an income tax return to 30 June 2017.
The Applicant’s representative argued that there were special circumstances in her case for two reasons: firstly, because Centrelink should have advised the Applicant that she was required to lodge a tax return, given that they knew that she had a rental property; and secondly, because until the Applicant engaged her new accountants on 15 December 2016, she did not know that she needed to obtain a depreciation report to claim deductions on her rental property (transcript/4-6; T1/3). The Applicant’s representative argued that these two factors collectively constituted special circumstances that would justify the exercise of discretion to extend the time for the Applicant to lodge her 2014/2015 income tax return to 30 June 2017.
The Tribunal is not satisfied that these circumstances are so unusual, uncommon or exceptional (Beadle; Groth; Angelakos; Hooker) that they would qualify as giving rise to special circumstances that would justify the exercise of discretion in her favour.
More specifically, an application of the case law set out above does not support the conclusion that there are special circumstances. Centrelink was not under a legislative or common law duty to give the Applicant specific tax or social security advice based on her personal circumstances (Scott; Field; Cannon). Additionally, the Applicant’s ignorance of the need to obtain a depreciation report to claim deductions on her property, and her ignorance of the requirement to lodge an income tax return, are not enough to amount to special circumstances (Cannon).
Prevented from lodging income tax return
Although the Tribunal has concluded there are no special circumstances that apply to the Applicant, for completeness, the Tribunal will consider whether the Applicant was prevented from lodging her income tax return.
As with special circumstances, neither the Act nor the Administration Act defines “prevented”.
In Afghani and Secretary, Department of Social Services [2017] AATA 410, Member Morris, at [61]-[62] applied the “ordinary dictionary meaning” of prevented. Member Morris stated, at [62] that, “The Concise Oxford Dictionary of Current English (5^th Edition, 1972 print) defines ‘prevent’ as to ‘hinder, or stop’.”
In the Applicant’s online lump sum claim for FTB, submitted on 3 September 2015, she stated that she did not intend to lodge a tax return because her income was below the
tax-free threshold. It was only after 15 December 2016 (after the 30 June 2016 deadline), when she engaged accountants to act for her, that she intended to lodge an income tax return to claim the depreciation on the rental property.
Consequently, even if there were special circumstances (which the Tribunal has found there were not), there is no evidence that the Applicant was prevented from seeking advice from an accountant, from obtaining a depreciation report, or from lodging an income tax return.
A LEGALLY RECOVERABLE DEBT?
Section 71(1) of the Administration Act provides that if an amount of FTB has been paid in respect of a period to a person who was not entitled to it for that period, “the amount so paid is a debt due to the Commonwealth by the person”.
The Tribunal has found that there were no special circumstances which prevented the Applicant from lodging her 2014/2015 income tax return by the 30 June 2016 deadline, which would justify discretion being exercised to extend the time for lodgement to

30 June 2017. This means that, under s 14A(1) of the Administration Act, her claim was taken to have never been made, and consequently that she was not entitled to FTB and therefore SKB for the 2014/2015 income year. Therefore, the amount of FTB and SKB the Applicant was paid for the 2014/2015 income year is a debt due to the Commonwealth.
SHOULD THE DEBT BE WAIVED OR WRITTEN OFF?
Section 101 of the Administration Act provides for waiver in special circumstances. It provides:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of the family assistance law; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
The Tribunal accepts that the Applicant acted honestly and that she genuinely believed that she was not required to lodge an income tax return for the 2014/2015 financial year. However, as discussed above, the Tribunal has found that the Applicant did not meet the threshold of special circumstances, and so the debt cannot be waived under s 101 of the Administration Act.
Section 97 of the Administration Act provides that the Secretary must waive the right to recover the proportion of a debt that “is attributable solely to an administrative error made by the Commonwealth” if the debtor received the payment in good faith and “would suffer severe financial hardship if it were not waived”.
In Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173 (Gerhardt), Deputy President Forgie stated, at [39]-[40], that “solely” in the context of a debt being attributable solely to the Commonwealth’s administrative error should be given its “ordinary meaning”. Deputy President Forgie explained, at [40] of Gerhardt:
Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth’s administrative error. The Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth’s administrative error (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error. Whether it is or is not attributable in that situation to the Commonwealth's administrative error will be a question of fact.
The Applicant’s debt cannot, however, be waived under s 97 because it was not solely attributable to an administrative error made by the Commonwealth. There was no administrative error as a result of Centrelink not informing the Applicant that she should lodge an income tax return because, as explained above, Centrelink was under no obligation or responsibility to do so. The debt is attributed to the Applicant’s late lodgement of her 2014/2015 income tax return, and not any error made by the Commonwealth.
CONCLUSION
The Tribunal has found that:
(a)The Applicant was required to lodge an income tax return for the 2014/2015 income year by 30 June 2016 because she had made a tax loss. The Applicant lodged her income tax return after this date on 7 February 2017, and there were no special circumstances upon which the time could be extended to 30 June 2017. Consequently, the Applicant’s claim for FTB is deemed never to have been made and she was overpaid FTB (and consequently SKB) during the 2014/2015 income year.
(b)The overpayment constitutes a legally recoverable debt.
(c)There is no basis upon which recovery of all or part of the debt should be waived or written off.
DECISION
For the reasons set out above, the correct or preferable decision is that the decision of the ARO dated 1 May 2019, as affirmed by the AAT1 on 5 September 2019, is affirmed.

I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

......[Sgd]..................................................................
Associate
Dated: 25 August 2020

Date of hearing: 16 June 2020

Advocate for the Applicant: Mr B Mansell, Mansell & Associates

Solicitors for the Respondent: Ms S Dinkha, Services Australia

Date of hearing:	16 June 2020
Advocate for the Applicant:	Mr B Mansell, Mansell & Associates
Solicitors for the Respondent:	Ms S Dinkha, Services Australia