Burrell; Secretary, Department of Social Services and (Social services second review)
[2017] AATA 299
•6 March 2017
Burrell; Secretary, Department of Social Services and (Social services second review) [2017] AATA 299 (6 March 2017)
Division General Division File Number
2016/2554
Re
Secretary, Department of Social Services
APPLICANT
And
David Burrell
RESPONDENT
DECISION
Tribunal Dr Gordon Hughes
Date 6 March 2017 Place Melbourne The Tribunal sets aside the decision made by the Tribunal's first review on 5 April 2016 and substitutes a decision that the Respondent did not make an effective claim for Family Tax Benefit for the 2013-2014 financial year.
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Dr Gordon Hughes
SOCIAL SECURITY - Late lodgement of claim for Family Tax Benefit – whether "special circumstances" prevented compliance with legislative timeframes – lack of awareness of change to deadline – no obligation on Secretary to notify of changes in law – whether other circumstances contributed to the delay in lodgement – whether it is appropriate to consider other circumstances in combination with lack of awareness of legislative change
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999, ss 10(2), (2A)
Cases
Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25
Beadle and Director-General of Social Security (1984) 6 ALD 1
Bisceglie and Secretary, Department of Social Services (Social services second review) [2016] AATA 294
Dann and Secretary, Department of Social Services [2016] AATA 196
Department of Social Services and Willersdorf (Social services second review) [2016] AATA 535
Dranichnikov v Centrelink [2003] FCAFC 133
Groth and Secretary Department of Social Security (1995) FCA 1708
Hollis and Secretary, Department of Social Services [2015] AATA 941
Ivovic and Director Federal of Social Services [1981] AATA 57Lineham and Secretary, Department of Social Services (Social services second review) [2016] AATA 294
Re Hooker and Secretary of Social Services [2015] AATA 732
Secretary, Department of Social Services and Cannon [2015] AATA 1028
Secretary, Department of Social Services and Dunford [2016] AATA 567
Timothy Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 114
REASONS FOR DECISION
Dr Gordon Hughes, Member
6 March 2017
The Applicant was seeking a review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 5 April 2016 ("the first review decision") with respect to the existence of "special circumstances" which would justify the extension of time for the Respondent to lodge a claim for a lump sum payment of Family Tax Benefit (FTB) in respect of the financial year ending 30 June 2014.
Specifically, the Respondent lodged his claim on 10 August 2015. The time for lodgement expired on 30 June 2015 unless "special circumstances" existed which would justify extending the deadline for lodgement to 10 August 2015.
Legislation
Subsections 10(2) and (2A) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act) provide:
(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;
(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.
(2A) The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.
Discussion
The Applicant first applied for FTB on 30 January 2014. He was told to come back once he knew his taxable income for the year ending 30 June 2014. At the time, the legislation allowed lodgement of a claim for FTB within a period of 24 months from the end of the financial year in respect of which the benefit was being claimed – that is, until 30 June 2016.
The claim period for FTB was subsequently reduced from 24 months to 12 months. A letter was purportedly sent by Centrelink to the Respondent on 18 February 2014 advising him of this change, but he claims not to have received it. The effect of the change was that the deadline for claiming FTB in respect of the 2014 financial year was 30 June 2015. The Respondent lodged his claim on 10 August 2015.
The Respondent asserted that "special circumstances" existed which warranted an extension of the deadline for lodgement pursuant to sub-paragraph 10(2)(b)(ii) of the Act.
The Respondent claimed that the special circumstances comprised one or both of two events. First, he asserted he did not receive the letter from Centrelink dated 18 February 2014 advising that the deadline for lodgement of a claim had been reduced from 24 to 12 months from the end of the relevant financial year. Secondly, he asserted that he had been preoccupied dealing with his daughter who had been found to have special needs and who was in the process of transitioning to a new school.
It was not disputed that the Respondent's claim for FTB for the 2013/2014 financial year was received after the first income year after the relevant income year, notwithstanding earlier attempts by the Respondent to lodge a claim. Consequently paragraph 10(2)(b)(i) of the Act had not been satisfied.
It was also not disputed that unless the special circumstances discretion contained in sub paragraph 10(2)(b)(ii) of the Act applied to extend the period of time for the Respondent to lodge the FTB claim to 10 August 2014, the claim would be taken never to have been made.
An extension under sub-paragraph 10(2)(b)(ii) requires not only that the circumstances in question be "special" but also that those circumstances contributed to the individual's non‑compliance with the legislation: Re Hooker and Secretary of Social Services [2015] AATA 732; Hollis and Secretary, Department of Social Services [2015] AATA 941; Lineham and Secretary, Department of Social Services (Social services second review) [2016] AATA 294; Bisceglie and Secretary, Department of Social Services (Social services second review) [2016] AATA 294; Department of Social Services and Willersdorf (Social services second review) [2016] AATA 535; Secretary, Department of Social Services and Dunford [2016] AATA 567.
The term "special circumstances" is not defined in the Act but has been the subject of consideration on numerous occasions by the courts and by this Tribunal.
In Dranichnikov v Centrelink [2003] FCAFC 133, the Full Court of the Federal Court stated that circumstances were required which distinguished the case under consideration from the usual case, taking that case "out of the ordinary".
In Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal referred to "circumstances that are unusual, uncommon or exceptional", making the case under consideration one which was "markedly different from the usual run of cases".
In Groth and Secretary Department of Social Security (1995) FCA 1708, the Federal Court referred to the need for circumstances "to take [the case under consideration] out of the usual or ordinary case".
In Ivovic and Director Federal of Social Services [1981] AATA 57, the Tribunal referred to "a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes".
In Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25, the Federal Court stated that it was important to emphasise the words "unusual" and "uncommon", highlighting the fact that there must be "something that distinguishes the case from the ordinary or usual case".
In Timothy Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 114, DP Forgie emphasised that the prevailing circumstances must be considered in the context of the overall objectives of the legislation:
…"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.
Based on the authorities, it is this Tribunal's conclusion that for sub-paragraph 10(2)(b)(ii) of the Act to be enlivened, an individual must establish the existence of extraordinary circumstances which warrant a waiver of a strict application of a legislative requirement without undermining the overall integrity of the legislation and without visiting an unfairness on those (being the vast majority) who in the past have complied with the legislation despite any inconvenience or who have accepted that their non-compliance has resulted in a forfeiture of their rights.
Turning to the Respondent's contentions, it is appropriate to consider each of the relevant circumstances separately, and in combination, to determine whether they are "special" as that term is used in the Act.
In relation to the Respondent's contention that he was not advised of the change in time limits in which to lodge his claim, three issues must be considered – first, whether or not the Respondent was in fact advised of the legislative change; secondly, whether Centrelink had an obligation to advise the Respondent of the change; and thirdly, taking into account the first two issues, whether the circumstances were "special" such as to warrant an extension of time for the purposes of sub-paragraph 10(2)(b)(ii) of the Act.
On the question of whether the Respondent was advised of the changes, the Applicant asserted that it sent a letter dated 18 February 2014 advising of the March 2013 Budget changes. The Respondent contended that he received a separate letter on the same date, but not one which dealt with the legislative changes.
The Tribunal had no reason to doubt the Respondent's truthfulness in stating his recollection of the facts - he presented as a totally credible, intelligent and articulate witness. Whether his recollection is accurate as to what correspondence he received and what he did not receive is another matter. Ultimately it is unnecessary for the Tribunal to determine this issue for the reasons stated below.
The Secretary is not required to notify recipients of changes to legislation. This is well established at law: Secretary, Department of Social Services and Cannon [2015] AATA 1028; Dann and Secretary, Department of Social Services [2016] AATA 196. It is the responsibility of individuals to inform themselves as to their current legal obligations at any time. It follows that the Respondent's lack of knowledge regarding the change in legislation cannot be a "special circumstance" which justifies a waiver of the application of the legislation.
On the question of whether transition to the new schooling arrangements for the Respondent's daughter constituted "special circumstances", there can be no question that the Respondent and his wife were heavily committed in moving their child from a mainstream school to a special needs school.
In this regard, there are two issues to consider. The first is whether the problems confronting the Respondent in relation to his daughter's schooling were capable of constituting "special circumstances" and, if so, the second issue is whether those circumstances were the cause of the Respondent's failure to lodge his claim for Family Tax benefits on time.
On the first issue, the Tribunal is satisfied that the commitment required by a parent to a child with special needs could well constitute circumstances which are "unusual, uncommon or exceptional". The Tribunal is not satisfied, however, that such circumstances were in this instance the cause of the Respondent's failure to comply with the legislative deadline. Even with the distraction, commitment and undoubted emotional drain of dealing with his daughter's situation, the Respondent nevertheless had ample time to comply. The likely real cause of the delay was that, undoubtedly with the best of intentions, he prioritised his affairs in the mistaken belief that he had another 11 months or so in which to complete the paperwork and lodge a claim. Had he known the correct deadline, he could no doubt have met the new legislative requirement.
Given that the reason the Respondent missed the deadline was, in the Tribunal's opinion, a misunderstanding as to the due date, and given that a lack of knowledge of the law does not in itself constitute "special circumstances", the Respondent cannot succeed on this basis.
It may be that a combination of events, which on their own would not amount to "special circumstances", could have a cumulative effect of sufficient significance to satisfy the requirements of sub-paragraph 10(2)(b)(ii): see, for example, Willersdorf. In the present case, it might be asserted that a combination of the Respondent's lack of knowledge of the legislative change and the distractions of dealing with his daughter's situation, when viewed together, would be sufficient to satisfy the test for "special circumstances". The shortcoming of such an approach, however, is that it is not appropriate to bring the lack of legislative knowledge into the equation. Lack of knowledge of legislative obligation cannot, in isolation or in combination with other circumstances, be taken into account for these purposes. Accordingly, this approach cannot advance the Respondent's case.
Decision
For the reasons stated above, the Tribunal sets aside the decision made by the Tribunal's first review on 5 April 2016 and substitutes a decision that the Respondent did not make an effective claim for Family Tax Benefit for the 2013-2014 financial year.
1.
2. I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of:
Dr Gordon Hughes, Member
[sgd]........................................................................
Associate
Dated 6 March 2017
Date of hearing 31 January 2017 Applicant In person Advocate for the Respondent Ms Ailsa Bramley Solicitors for the Respondent Department of Human Services,
Freedom of Information & Litigation Branch
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