CJBX and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 690

CJBX and Secretary, Department of Social Services (Social security second review) [2025] ARTA 690 (28 May 2025)

Applicant:CJBX

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2024/2690

Tribunal:Senior Member S Trotter (second review)

Place:Brisbane

Date:28 May 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 28 May 2025 at 3:47pm

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A)–201(1B) of the Social Security (Administration) Act 1999.

Catchwords

Social Security – family tax benefit – whether claim is effective – whether time for lodging claim may be extended – whether special circumstances that prevented claim from being made within required timeframe

Legislation

Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
A New Tax System (Family Assistance) (Administration) Act 1999

Cases

Angelakos and Department of Employment and Workplace Relations [2007] FCA 25 Re Davis and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 730
Dranichnikov v Centrelink [2003] FCAFC 133
Graham and Secretary, Department of Social Services (Social services second review) [2019] AATA 2480
Hammelswang and Secretary, Department of Social Services [2015] AATA 905
Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488
Purches and Secretary, Department of Social Services [2015] AATA 267
Re Andrews and Director-General of Social Security (1983) AATA 248
Re Wilson (1981) AATA 88
Scott v Secretary, Department of Social Security [2000] FCA 124 Secretary, Department of Social Services and Cannon [2015] AATA 1028
Secretary, Department of Social Services and Hollis [2015] AATA 41
Sheehan and Secretary, Department of Social Security [1987] AATA 563
Spence and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2008] AATA 25

Secondary Materials

Nil

Statement of Reasons

1. This application for review is about whether CJBX lodged an effective claim for family tax benefit (FTB) for the 2021/2022 income year in order that his entitlement to FTB may be assessed and, if payable, paid to him.

2. On 13 December 2023, CJBX lodged a claim for a lump sum payment of FTB for the 2021/2022 income year.

3. On 1 January 2024, the Respondent decided to reject CJBX’s claim on the basis it was not an effective claim as it was lodged more than 12 months after the end of the relevant income year. On 2 January 2024, the Respondent further determined that an extension of time could not be granted for lodgement of the claim for FTB for the 2021/2022 financial year.

4. CJBX sought internal review by the Respondent of the decision to reject CJBX’s claim for FTB for the 2021/2022 income year. On 30 January 2024, an authorised review officer reviewed and affirmed the original decision. On 22 April 2024, following application by CJBX for first review of that decision, the Social Security and Child Support Division of the Administrative Appeals Tribunal (the AAT) also affirmed the decision, with the decision notified to CJBX on 2 May 2024.

5. On 2 May 2024, CJBX lodged an application with the AAT seeking second review of the decision.

6. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

7. CJBX and the Respondent’s representative participated in a hearing before me by telephone on 14 April 2025, with CJBX giving evidence on affirmation.

8. In addition to CJBX’s oral evidence and the oral submissions at hearing from both parties, I took into account the following documents before me:

   (a)Documents provided by the Respondent pursuant to section 37 of the then Administrative Appeals Tribunal Act 1975 (the AAT) Act), index and pages numbered 1 to 71 and index and further documents provided by the Respondent pursuant to section 25 of the Administrative Review Tribunal Act 2024, index and pages numbered 72 to 105, all marked as Exhibit R1; and

   (b)Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 5 December 2024, marked R2 for identification.

   ISSUES

9. The statutory provisions relevant to this review are contained in the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).

10. Section 5 of the Administration Act provides that the only way a person is entitled to FTB is if they make a claim in accordance with Subdivision A of the Administration Act.

11. Section 10 of the Administration Act then restricts when a claim can be made for a past period. Subsection 10(2) of the Administration Act provides that a claim for payment of FTB for a past period is not effective if the period falls wholly within one income year but the claim is made after the end of the first income year immediately following the income year in relation to which the claim is made.

12. Subparagraph 10(2)(b)(ii) of the Administration Act provides a discretion to extend the period within which a claim will be considered effective if there are special circumstances that prevented the claimant from making the claim before the end of that first income year. Subsection 10(2A) of the Administration Act provides the further period must end no later than the end of the second income year after the relevant income year.

13. Pursuant to section 13 of the Administration Act, a claim that is not effective is taken not to have been made.

14. CJBX in his 2 May 2024 application for second review stated as follows in his relation to his reasons for the application:

    Centrelink had not informed me of the changes.

    Centrelink had not provided information to (AAT first review).

    My children are being discriminated not having the benefit to help purchase clothing and school fees.

15. The issues that arise for determination are therefore as follows:

    (a)  Was CJBX’s claim for lump sum payment of FTB for the 2021/2022 income year lodged after 30 June 2023? And, if so,

    (b)  Are there special circumstances that prevented the Applicant from making the claim before 30 June 2023?

    CONSIDERATION

16. CJBX did not dispute that he lodged a FTB lump sum claim for the 2021/2022 income year on 13 December 2023. His evidence was that had he known about the time limit issue, he would have got the claim in at an earlier date. CJBX’s evidence included that when he was told that the date had expired to apply for FTB, he was told that Services Australia had changed their policy in previous years and that previously if you hadn’t lodged an application for FTB within certain time frames, it would automatically be paid into your account. He queried why he was not informed of the change via email or letter if the policy was changed and was told that he had to look at the website but it is not reasonable that he should be required to check changes on a website. He noted, by way of example, that if something changed in relation to his electricity account, his telephone service or his car registration, he would get notified of those changes. If he had been notified of the changes, and the time limit, he would have lodged the claim by the required date. He did not know about it and was not told about it. CJBX noted that he has been employed by the government for 24 years and has always done everything correctly and all he wanted was FTB for the benefit of his children, to assist in meeting their needs.

17. The Respondent’s position, as outlined in its written submissions, included that unfamiliarity with FTB legislation does not amount to special circumstances so that a further period beyond 30 June 2023 can be allowed for the claim to be lodged such that CJBX’s 13 December 2023 claim is effective pursuant to subparagraph 10(2)(b)(ii) of the Administration Act. The Respondent’s written submissions in this regard are set out paragraphs 40 to 43 of its SFIC and include reference to a number of previous decisions of the (then) AAT where it was found that lack of knowledge of the law does not constitute special circumstances.

18. CJBX was invited to respond to the SFIC (written submissions) of the Respondent. CJBX said that it just does not make sense; it’s just not fair. I discussed with CJBX that the Tribunal is bound to apply the legislation as enacted. I acknowledged that that requirement is regardless of what might be thought to be the ‘fair’ or ‘right’ thing and raised that I held a concern that I would not be able to make a decision in his favour having regard to the legislation and the circumstances he had discussed as regards lodging his claim. I asked CJBX if there were additional circumstances that prevented him lodging his claim for FTB for the 2021/2022 income year by 30 June 2023. CJBX said that as parents of little children, it is not something that is on the top of your mind to have your tax (FTB claim) lodged by a certain date, especially when you are not notified. He said that he was a new parent and had not understood how the system works in circumstances where he hadn’t previously obtained government benefits. CJBX’s evidence included that around this time his daughter had an accident, splitting her head open on a glass table requiring treatment by plastic surgeons, and when things like that happen in life, the last thing you think about is having your FTB (claim) done – you have to focus on your family.

19. The Respondent’s submissions in relation to the injuries to CJBX’s daughter (at paragraph 54 to 57 of its SFIC) was that the circumstances were not so special as to warrant an extension of time to lodge the FTB claim. The Respondent referred to previous consideration of health issues by the Tribunal in Hammelswang and Secretary, Department of Social Services [2015] AATA 905, Purches and Secretary, Department of Social Services [2015] AATA 267 and Spence and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2008] AATA 25 noting that it had previously been found that health issues do not usually amount to special circumstances and ordinarily need to be more severe than others of a similar circumstance. It was submitted that a parent taking an injured child to hospital for treatment was not an unusual, uncommon or exception circumstance. The Respondent submitted further, in any event, that even if it was accepted that the Applicant’s circumstances were special within the meaning of the Administration Act, those circumstances did not prevent the Applicant from lodging a FTB claim by 30 June 2023. The Respondent submitted that the Applicant at all times had the ability to familiarise himself with the prescribed timeframes for lodging a FTB claim as the Applicant had done when he submitted a claim for an Australian Government Disaster Recovery Payment via the internet in 2022. It was further submitted that whilst it was acknowledged that the injury to the Applicant’s daughter may have been a stressful event, there is no evidence that the event prevented the Applicant from lodging a FTB claim for the whole period between 1 July 2022 and 30 June 2023.

20. CJBX acknowledged at hearing that if he had known about the timeframe for lodging the FTB claim by 30 June 2023, regardless of the injury to his daughter, he would have lodged the claim in time.

    Issue 1: Was CJBX’s claim for lump sum payment of FTB for the 2021/2022 income year lodged after 30 June 2023?

21. CJBX does not dispute that, as shown by the Respondent’s records, he lodged a FTB lump sum claim for the 2021/2022 income year on 13 December 2023.[1] His claim was therefore lodged after the end of the first income year immediately following the income year in relation to which the claim is made, that is after 30 June 2023.

    Issue 2: Are there special circumstances that prevented the Applicant from making the claim before 30 June 2023?

    [1] Exhibit R1, page 14

22. The term ‘special circumstances’ is not defined in the legislation. However, the issue of what constitutes special circumstances has been considered by Courts and Tribunals on a number of occasions previously. The Federal Court in Angelakos and Department of Employment and Workplace Relations [2007] FCA 25 considered a number of previous decisions which have discussed the term ‘special circumstances’. It concluded that a degree of flexibility is required because of the wide range of circumstances that can arise. The Full Federal Court in the matter of Dranichnikov v Centrelink [2003] FCAFC 133 determined that whether there are special circumstances in a particular case is dependent on whether there are circumstances that would distinguish the case from the usual case.

23. In Sheehan and Secretary, Department of Social Security [1987] AATA 563, the then AAT held that the relevant question in a similar case was as follows:

    The question is thus not one of whether an applicant is a deserving one, because of the special circumstances which exist in his or her life, thereby justifying payment … but whether "special circumstances" existed which prevented, or contributed to an applicant being prevented, from lodging the application in time.

24. There has also been extensive previous consideration of circumstances in which an applicant was not aware of the applicable legislation/time limit. In Graham and Secretary, Department of Social Services (Social services second review) [2019] AATA 2480 (Graham), the Tribunal in considering a similar case, held including as follows:

    …as a matter of general principle, ignorance of the law is no excuse for a person’s failure to comply with it. The Department has no statutory obligation to provide her, or any of its clients, with information regarding changes to the law; Secretary, Department of Social Services and Hollis [2015] AATA 41; Secretary, Department of Social Services and Cannon [2015] AATA 1028.

    In Scott v Secretary, Department of Social Security [2000] FCA 124 the Full Court of the Federal Court held that Centrelink is not under an obligation either to advise or correct applicants in relation to potential benefits. The Tribunal in Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488 at [10] accepted the rule in Scott as authority for the point that:

    …Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a social security payment, nor do they require Centrelink to correct errors made by a claimant.

25. The Tribunal in Graham concluded that the applicant’s lack of awareness of the changes to the applicable law did not amount to special circumstances noting that conclusion was consistent with approach taken in In Re Wilson (1981) AATA 88 (Wilson) and in Re Andrews and Director-General of Social Security (1983) AATA 248 (Andrews).

26. In Wilson it was held at [28] that:

    …any special circumstances must be found apart from the applicant’s mere unawareness of the existence of the legislation. 

27. The Tribunal in Wilson referred to an analogous case of Re Davis and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 730 where it was found that the applicant’s unawareness of the amendment of the law, unaccompanied by any obligation on the part of the Authority to inform her of her potential eligibility for a grant, did not constitute special circumstances within the meaning of the relevant legislative provision in that case.

28. In Andrews, the Tribunal confirmed at [14] that:

    … mere ignorance of the law is insufficient to constitute special circumstances.

29. It is clear that the reason CJBX’s claim for FTB was not lodged within time was because of the lack of knowledge of the applicable time limit. I acknowledge the understandable stress associated with CJBX’s daughter’s injury which I accept likely occurred at around the same time. However, as acknowledged by CJBX in evidence, if he had known about the time limit, he would have lodged the claim earlier. As recognised in Scott, Centrelink is not responsible for notifying members of the public at large about their entitlements. Further, as recognised in numerous previous considerations of similar issues, including in Graham, Wilson and Andrews, a lack of knowledge of the law, and time limits contained within the legislation, is not sufficient to substantiate a finding of special circumstances. It was CJBX’s lack of awareness of the applicable time limit that prevented him from lodging the claim by 30 June 2023. It follows that I am not satisfied that were special circumstances that prevented CJBX from lodging the FTB lump sum claim for the 2021/2022 income year before 30 June 2023.

    Conclusion

30. As CJBX’s claim was not lodged by 30 June 2023 and I have been unable to find that there were special circumstances that prevented him lodging the claim prior to that time, the claim was therefore not effective pursuant to subsection 10(2) of the Administration Act and the decision under review must be affirmed.

    DECISION

    The Tribunal affirms the decision under review.

Date of hearing:	14 April 2025
Applicant:	Self-represented
Advocate for the Respondent:	Ms S Navaratnam