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

Cameron and Secretary, Department of Social Services (Social services second review) [2017] AATA 2586 (13 December 2017)
Division:GENERAL DIVISION
File Number: 2017/3110
Re:Mrs Fiona Cameron
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member D Davies
Date:13 December 2017
Place:Brisbane

The decision under review is unsuccessful and the decision made by the Social Services and Child Support Division on 15 May 2017 is affirmed.
................................[Sgd]........................................
Senior Member D Davies
CATCHWORDS
SOCIAL SECURITY – family tax benefit – whether the Applicant lodged an effective FTB past period claim – whether there are special circumstances that prevented the Applicant from making the claim – decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Family Assistance Guide
CASES
Angelakos and the Secretary Department of Employment and Workplace Relations [2007] FCA 25
Groth and Secretary Department of Social Services [1995] FCA 1708
Hooker and Secretary Department of Social Services [2015] AATA 732
SECONDARY MATERIALS
Encyclopaedic Australian Legal Dictionary
REASONS FOR DECISION
Senior Member D Davies
13 December 2017
BACKGROUND

This matter concerns a claim by Mrs Fiona Cameron (the Applicant) for family tax benefit (FTB) for the 2014/2015 income year.
The background facts are not in contention. On 29 October 2015 the Applicant lodged a claim for child care benefit (CCB) with an Officer of the Department of Human Services (the Department) over the telephone and the claim was granted.[1]
[1] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 4 October 2017, para 2.
On the same date 29 October 2015, the Applicant created an online past period FTB claim for the 2014/2015 income year.[2]
[2] Exhibit 4, Secretary’s submissions dated 14 November 2017, Attachment B, online claim form created on 29 October 2015.
The Applicant and her partner lodged their income tax return for the 2014/2015 year on 13 May 2016.[3]
[3] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 4 October 2017. para 4.
On 7 October 2016, the Applicant contacted the Department to enquire about the 2014/2015 past period claim (Claim ID: 0003289246). A file note of the Department on the same date states:
“CUS had started OLC for LSC 14/15 within lodgement period, however claim was not finalised. CUS to finalise OLC”.[4]
[4] Exhibit 1, T Documents, T12, p52.
On 7 October 2016 the FTB claim (Claim ID: 0003289246) was submitted online and was rejected on the basis that the claim was not effective.[5]
[5] Exhibit 1, T Documents, T4, pp21-25; Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated
On 17 October 2016 a letter was sent to the Applicant advising her that her past period claim for the 2014/2015 income year could not be paid as the claim was not lodged by

30 June 2016.[6]
[6] Exhibit 1, T Documents, T5, pp26-27.
On 2 November 2016 the Applicant sought a review of the decision and on

20 December 2016 the decision was affirmed by the Authorised Review Officer (ARO).[7]
[7] Exhibit 1, T Documents, T9, pp33-38.
The Applicant applied for further review and on 15 May 2017 the Social Services and Child Support Division of this Tribunal (AAT1) reviewed and affirmed the decision.[8]
[8] Exhibit 1, T Documents, T2, pp4-8.
In its decision AAT1 concluded that the Applicant had made a mistake in her use of the online claim method and that she failed to notice that she had not received a receipt for her FTB claim in October 2015.[9]
[9] Exhibit 1, T Documents, T2, p7 para 15.
The Applicant applied to this Tribunal for review of the previous decisions on 25 May 2017.[10]
[10] Exhibit 1, T Documents, T1, pp1-3.
In her application for review the Applicant states:
“Although I had completed and submitted the claim within the allowed time, it did not go through. When discussed with the initial centrelink staff she told me to press the submit button again. This meant that my claim went through outside of the allotted time.
When discussing this with centrelink staff at a different time, I was told that “that centrelink staff member should not have told you to do that, as we could have investigated as to why it did not go through” especially as on the same day that I did another claim and that went through.
[11] Exhibit 1, T Documents, T1, p3.
Computer glitch on the centrelink and should be a special circumstance as my claim was sitting completed in the centrelink system for 1 year”.[11]
LEGISLATIVE PROVISIONS
The relevant legislation is contained in the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act).
Section 5(1) of the Act provides that:
“The only way a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision”.
Section 7 of the Act relevantly provides that:
“(1)An individual ……may make a claim: …
(b) For payment of a family tax benefit for a past period …
Form etc of claim
(2)To be effective:
(a) a claim must:
(i)be made in a form and manner;
(ii)contain any information; and
(iii)be accompanied by any documents required by the Secretary…”
Section 10(2) and (2A) of the Act provides:
“Restrictions on claims for payment of family tax benefit for a past period …
Claim must relate to one income year and be made within a certain period
(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.
(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.”
Section 13 of the Act provides:
“Secretary must determine claim
(1) If an effective claim is made, the Secretary must determine the claim in accordance with this subdivision. If a claim is not effective, it is taken not to have been made.”
The Department’s Family Assistance Guide (the Guide) sets out the Secretary’s requirements for lodging a FTB claim. Item 1.1.E.10 of the Guide relevantly provides:
“For the purposes of FTB, a claim for FTB must be effective before it can be determined. A claim is only effective if:
· it is made in a manner and form approved by the Secretary, and
· all relevant documents and information have been provided by the applicant …
If the claim is not effective, it is taken not to have been made. This means that the claim cannot be determined, and therefore there is no determination decision to review. However, the decision that the claim is not effective can be reviewed…”
Item 4.2.1.10 of the Guide provides that:
“To be effective (1.1.E.10) a claim must be lodged in a form and manner as required by the Secretary. It must be:
·        in writing;
·        on an approved claim form;
·        signed by the individual, and
·        lodged at any Centrelink site. …
The date of lodgement is the date that it is received by Centrelink”.
Item 4.2.2.10 of the Guide sets out FTB claim requirements. It states that for common claim requirements:
“To be effective (1.1.E.10) a claim must meet all of the basic conditions set out in the following table. If any condition is not met the claim is not effective…”
The table requires the claim to be: “Made in the form and manner specified by DSS” and that the “Applicant has answered all relevant questions”. It also provides that:
“Once the claim meets all of the common claim requirements, the specific claim requirements for the type of claim must be met.”
For a past period claim such as the present claim, those requirements are set out in the Guide Item 4.2.2.20 which states:
“From 1 July 2013, individuals have 12 months after the income year (1.1.I.75) to lodge a past period claim”.
Item 4.2.2.20 then sets out various restrictions and requirements for FTB claims which are not relevant to the present case.
In the present case, the Applicant created the FTB claim online. The Secretary’s requirements for the manner and form for the online lodgement of FTB claims is set out in the Department’s Operational Instruction 133-03010070.[12]
[12] Exhibit 4, Secretary’s submissions dated 14 November 2017, Attachment A, Online claim for family assistance and Parental Leave Pay (PPL) 133-03010070.
This instruction outlines how an online FTB claim can be made. It provides:
“Submitting the online claim
Claimants must accept a declaration before they can submit the claim. This is a legal declaration and removes the need for a signed claim form.
[13] Exhibit 4, Secretary’s submissions dated 14 November 2017 Attachment A, Online claim for family assistance and Parental Leave Pay (PPL) 133-03010070, page 3.
Information from My Profile will be displayed in the Review and submit section. Claimants will have the opportunity to return to My Profile and make changes before submitting the claim and upon completion Centrelink will return them to review and submit their claim”.[13]
Accordingly, once the claim details are completed online, the declaration must be accepted and then the “submit” box must be clicked.
ISSUES FOR THE TRIBUNAL
The issue to be decided by the Tribunal is whether the Applicant lodged an effective FTB past period claim for the 2014/2015 year. This requires consideration of whether the Applicant made the FTB claim in the manner and form approved by the Secretary and in this case before 30 June 2016, and if not, whether there are special circumstances that prevented the Applicant from making the claim before 30 June 2016.
CONSIDERATION
The evidence before the Tribunal is contained in the Tribunal Documents.[14] The Applicant also gave oral evidence to the Tribunal. The Applicant impressed me as an honest and truthful person.
[14] Exhibit 1, T Documents, and the other Exhibits.
As previously mentioned, the evidence is that the Applicant created an online past period FTB claim for the 2014/2015 year on 29 October 2015. The Applicant and her partner lodged their income tax returns for the 2014/2015 year with the Department on 13 May 2016.
However, when the Applicant contacted the Department on 7 October 2016 to enquire about the 2014/2015 FTB claim, it appeared that it had not been finalised. The Applicant gave evidence that on this occasion the Department Officer took her through the online claim and at the end of the claim she was told to click on “submit” which she did and the claim went through.
A copy of the online FTB claim ID0003289246 is in the Tribunal Documents.[15]
[15] Exhibit 1, T Documents, T4, p21-25.
It notes the “Claim Creation Date: 29.10.15” and “Claim Submission Date: 07.10.16”.
As previously mentioned, on 17 October 2016 the Department sent the Applicant a letter advising her that her past period claim for the 2014/2015 year could not be paid as the claim was not lodged by 30 June 2016.[16]
[16] Exhibit 1, T Documents, T5, pp 26-27.
The Respondent contends that the FTB claim was not effective as required by Section 7 of the Act because it was not made in the form and manner required by the Secretary and that it was not made by 30 June 2016 as required by Section 10(2) of the Act.
The Respondent contends that the FTB claim was not “submitted” by the Applicant in time and therefore was not lodged in the manner approved by the Secretary. It is therefore contended that the claim was not effective.[17]
[17] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions dated 4 October 2017, para 23 and 25.
As I have mentioned, Item 4.2.1.10 of the Guide requires the claim to be lodged in a form and manner required by the Secretary and must be:
·in writing;
·         on an approved claim form;
·     signed by the individual; and
·     lodged at any Centrelink site.
In the case of online claims, the Secretary’s requirement is that the claim details be completed, the declaration made and then the claim be submitted by clicking on the “submit” box.[18]
[18]          Exhibit 4, Secretary’s submissions dated 14 November 2017, Attachment A, Online claim for family assistance and Parental Leave Pay (PPL) 133-03010070.
The Secretary submits that whilst the Applicant created the FTB claim on 29 October 2015 that she failed to submit the claim on that date and that the claim was not submitted until 7 October 2016 when she finalised the form online.
The Applicant in her evidence to the Tribunal says that when she created the form online on 29 October 2015, she believed that she had completed everything which was required and that if it did not go through then it was because of a “computer glitch” in the Department. She says that on 7 October 2016 when she contacted Centrelink about it she was taken through the online form which she had originally created on 29 October 2015 and which was still there and she was then told to click on “submit” which she did. She says that she was then told that it had been submitted too late and the claim could not be accepted. The Applicant also gave evidence that she later contacted Centrelink about what had happened and was told that she should not have been told to “click on submit” because once it was submitted on 7 October 2016 any ability to investigate what happened on 29 October 2015 was lost. She says that she does not understand why when she completed the claim on 29 October 2015 she would not have clicked for it to be submitted.
I note that there is a copy of the online claim in Exhibit 4, Attachment B which the Respondent submits is the one created on 29 October 2015. This document shows “Date of receipt: 29 October 2015”. This document also shows at the end, which is page 6 of Attachment B, the section with the declaration as to the information being complete and correct. I note that whilst the content of this document is very similar to the FTB claim submitted on 7 October 2016[19] that in the T4 document at the end of it there is a section – “Summary & Declaration ” with the notation:
“Declaration accepted Yes”.
[19] Exhibit 1, T Documents, T4, pp21-25.
In relation to Exhibit 4, Attachment B and the date of receipt and notation, the Respondent in its submissions to the Tribunal says that this is the date that it was created and received but that it was not submitted on that date because the steps required for online submission were not carried out.
The Guide requires the claim to be lodged in the form and manner required by the Secretary. The Encyclopaedic Australian Legal Dictionary defines “lodge” as meaning:
“Deliver and place a document or thing into the possession of a person in relation to an official procedure. Lodgement requires a degree of physical acceptance by the person to whom the thing is given and is more than the mere placing or depositing of the object with that person; Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477; 83 ALR 449.
…..The recipient has a discretion as to whether or not to effect the lodgement. If the document does not comply within internal guidelines or procedures prescribed for lodgement (if any), then the document will not have been lodged even though it may be in the recipient’s possession or physical control”.
Whilst I accept that the Applicant believes that when she created the FTB claim online on 29 October 2015 that as she said in her evidence she “had done the form correctly and submitted it correctly”, there is no evidence of any computer glitch in the Department which affected the submission of the claim.
I am satisfied that on the evidence before me the Applicant failed to lodge the FTB claim online on 29 October 2015 in the manner and form required by the Secretary and that it was not lodged correctly until it was submitted by the Applicant on 7 October 2016.
Because the claim was not lodged until 7 October 2016, it is outside the period of 1 year after the 2014/2015 income year to which the claim relates. Accordingly, it will not be effective in accordance with Section 10(2) of the Act unless there are special circumstances that prevented the Claimant from making the claim before 30 June 2016.
SPECIAL CIRCUMSTANCES
In Hooker and Secretary Department of Social Services [2015] AATA 732 at 14, in considering Section 10(2)(b)(ii) of the Act, the Tribunal said:
“In order for the time for making the 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”.
The meaning of “special circumstances” for the purposes of the Act and other Social Security Legislation has been considered in many cases. In Groth and Secretary Department of Social Services [1995] FCA 1708, the Court formulated that these were circumstances that distinguished the Applicant’s case from others and take it “out of the usual or ordinary case”. That formulation was also adopted in Angelakos and the Secretary Department of Employment and Workplace Relations [2007] FCA 25.
In the present case, the Applicant in her Application for review stated:
“Computer glitch on the centrelink should be a special circumstance, as my claim was sitting completed in the centrelink system for one year”.[20]
[20] Exhibit 1, T Documents, T1, p3.
In her evidence to the Tribunal the Applicant said that the special circumstances which prevented the claim being made was a technical glitch in the Department’s computer system which prevented the form from going through.
She also said in her evidence that during this period her son was going through the process of being diagnosed with ADHD and autism spectrum disorder that required a lot of funding causing some financial hardship. She said that in the same year her daughter had croup and her mother was in an intensive care unit for three days. She herself was also diagnosed and treated for some skin cancers during this period.
The Applicant also in her evidence said that although these things did not prevent her submitting the form, they did cause her not to think about why she had not been paid. She said:
“They did not prevent me from lodging it because I had already lodged it in my mind”.
As I observed earlier, the Applicant has been frank and honest in her evidence.
As there is no evidence that there was a “computer glitch” in the Department’s computer system which prevented the lodgement of the Applicant’s claim on 29 October 2015, I am not satisfied that this was a special circumstance in this case. I am also not satisfied that the illness within her family to which she referred in her evidence constitutes special circumstances.
I find that there are no special circumstances for the purposes of Section 10(2)(b)(ii) of the Act.
The Applicant’s own evidence is that those things did not prevent her from lodging the claim in time because in her mind she had already lodged it in October 2015.
Accordingly I find that there are no special circumstances which prevented the Applicant’s FTB past period claim being lodged by 30 June 2016. I find that the Applicant’s FTB past period claim in accordance with Section 13(1) of the Act is not effective and is “taken not to have been made”.
CONCLUSION
The Application for review is unsuccessful and the decision made by AAT1 on 15 May 2017 is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Davies

................................[Sgd]........................................
Associate
Dated: 13 December 2017

Date of hearing: 17 November 2017

Applicant: In person

Solicitors for the Respondent: Ms Jasmine Forsyth
Department of Human Services

4 October 2017, para 6.

[2017] AATA 2586

13 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date of hearing:	17 November 2017
Applicant:	In person
Solicitors for the Respondent:	Ms Jasmine Forsyth Department of Human Services