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

Crabtree and Secretary, Department of Social Services (Social services second review) [2017] AATA 1024 (5 July 2017)
Division:GENERAL DIVISION
File Number: 2016/3085
Re:Angelina Crabtree
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mr Andrew Cameron, Member
Date:5 July 2017
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Mr Andrew Cameron, Member
SOCIAL SECURITY – family tax benefit – entitlement to FTB top-up payment for 2013/2014 financial year – applicant failed to lodge income tax return for 2013/2014 year by due date – no “special circumstances” preventing lodgement of tax return – decision under review affirmed
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth); ss 28, 32A, 32B, 32C, 32D
A New Tax System (Family Assistance) Act 1999 (Cth); s 26
Administrative Appeals Tribunal Act 1975 (Cth); s 37
Cases
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Bisceglie and Secretary, Department of Social Services [2016] AATA 294
Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Re Secretary, Department of Social Services and Hollis [2015] AATA 941
REASONS FOR DECISION
Mr Andrew Cameron, Member
5 July 2017
INTRODUCTION

The issue for consideration by this Tribunal is whether Mrs Angelina Crabtree is entitled to a family tax benefit (FTB) top-up payment for the 2013/2014 financial year.
By way of background:
(a)Mrs Crabtree had been paid FTB by way of fortnightly instalments during the 2013/2014 financial year;
(b)On 7 December 2015, a delegate of Centrelink decided not to pay Mrs Crabtree the top-up payment because she had not met the tax return lodgement requirements;
(c)Mrs Crabtree asked for the decision to be reviewed and an authorised review officer (ARO) affirmed the decision on 19 January 2016;
(d)Mrs Crabtree then applied for review by the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal. The SSCSD on 27 April 2016 affirmed the decision of the ARO; and
(e)Mrs Crabtree then lodged on 14 June 2016 an application for a second review by this Tribunal.
In considering whether Mrs Crabtree is entitled to the top-up payment, the critical issue that this Tribunal must consider is whether there are "special circumstances" that prevented Mrs Crabtree from lodging her tax return for the 2013/2014 financial year by 30 June 2015.
For the reasons set out below, I am of the view that there were no "special circumstances" that prevented Mrs Crabtree from lodging her return on time and, accordingly, the decision under review must be affirmed.
LEGISLATIVE PROVISIONS
The relevant legislative provisions are contained within A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act).
Reconciliation of family tax benefit payments occurs each year and involves comparing the amount of family tax benefit paid to a person on the basis of their estimate of adjusted taxable income and their actual adjusted taxable income for a financial year.
Section 28(3) of the Administration Act provides for the variation of a person’s past period entitlement when a tax return is lodged within the period allowed under Subdivision D of Division 1 of Part 3 of the Administration Act.
Section 32A of the Administration Act requires the Secretary to disregard FTB supplements when making a determination until the prospective recipient has satisfied the FTB reconciliation conditions applying to the relevant period.
Section 32B of the Administration Act provides that reconciliation conditions are satisfied:
(a)if only one of sections 32C to 32Q of the Administration Act applies, at the relevant reconciliation time; and
(b)if more than one of sections 32C to 32Q of the Administration Act applies, at whichever of the relevant reconciliation times is the latest.
In Mrs Crabtree’s case, sections 32C and 32D of the Administration Act apply. Section 32C of the Administration Act deals with the relevant reconciliation time when the first individual must lodge a tax return and section 32D deals with the relevant reconciliation time where there is no separation of a couple and the partner must lodge a return.
Under s 32D of the Administration Act, the reconciliation time is when an assessment of the taxable income is made under the relevant taxation legislation, as long as the tax return was lodged before the end of the first income year after the relevant income year or such further period as allowed by the Secretary. Mrs Crabtree's husband, Mr James Crabtree, lodged his return before 30 June 2015. The reconciliation time, under section 32D(2) of the Administration Act, is the date of his tax assessment which was 26 November 2014.
Sections 32C(3) and 32C(4) of the Administration Act provide that:
(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 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 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)
Accordingly, I have discretion to extend the time for Mrs Crabtree to lodge her return where, first, there were special circumstances, and secondly, the special circumstances prevented Mrs Crabtree from lodging her tax return by 30 June 2015.
MATTERS FOR CONSIDERATION
In considering this matter, I have had regard to:
(a)Mrs Crabtree's oral evidence and submissions made during the hearing;
(b)Mr James Crabtree's (Mrs Crabtree's husband) evidence;
(c)the Respondent's submissions;
(d)the Respondent's statement of facts and contentions, received by the Tribunal on 18 August 2016; and
(e)the documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
CRITICAL FACTS
Letters Issued by the Respondent to Mrs Crabtree
By way of background, in the 2013/2014 financial year, Mrs Crabtree was paid family tax benefit for her two children by instalments, based on an estimate of combined adjustable taxable income.
On 1 May 2013, the Respondent issued a letter to Mrs Crabtree stating, among other things:
I invite you to update your family income estimate for the 2013-2014 financial year. Please carefully consider the following information before determining your estimate.
On 6 August 2013, the Respondent issued a second letter to Mrs Crabtree about the provision of an income estimate for the 2013-2014 financial year.
On 13 May 2014, the Respondent issued a further letter to Mrs Crabtree about updating the income estimate for the 2014-2015 year.
On 24 March 2015, the Respondent issued Mrs Crabtree with a letter titled "Family Tax Benefit - Important action required by 30 June 2015". The letter stated, among other things:
To make sure you receive your full Family Tax Benefit entitlement, you and your partner need to lodge a 2013-2014 tax return, or tell us if you and/or your partner are not required to lodge a tax return by 30 June 2015.
…
If you and your partner do not take action by 30 June 2015
If you and your partner have not lodged a tax return… by 30 June 2015:
·you will not be eligible for any further Family Tax Benefit, including the Family Tax Benefit supplements, for the 2013-2014 financial year …
Mrs Crabtree's Circumstances
Mrs Crabtree relocated, in or about January 2015, with her husband and two young children, aged 7 years and 3 years respectively at the time of the hearing, from Melbourne to Kyneton.
Mrs Crabtree works part-time (being 2.5 days per week) as a medical scientist in Melbourne. Her husband, James, also works in Melbourne.
Her father, Mr Antonio Gangemi, lives in Perth, Western Australia. During the course of May 2015 and June 2015 Mr Gangemi was ill.
Mrs Crabtree travelled to and from Perth on a number of occasions, relevantly:
(a)to Perth on 5 June 2015, returning on 12 June 2015 to Melbourne; and
(b)to Perth on 19 June 2015, returning on 24 June 2015 to Melbourne.
Mrs Crabtree gave evidence that, during this period, her father's medical condition was difficult to diagnose and that his illness presented "atypically". She further gave oral evidence that her father, who lives alone, was reluctant to go to the doctor, that he was otherwise a fit and energetic person and that his behaviour started to change with his illness.
Mrs Crabtree said in oral evidence that she knew her tax return was late and knew that it had to be completed.
The evidence was that most of Mrs Crabtree's paperwork for her tax return had been pulled together for her accountant, but this was interrupted by her father's illness. She said that it was an "incredibly stressful" time for both her and her family. In her written submissions lodged with the Tribunal, Mrs Crabtree stated, among other things:
…Just because I had to return home to care for my children and to return to work it does not mean that the worry and time spent on caring and providing support for elderly, sick Father evaporated. Trying to provide remote care and support is even more stressful because you do not have the benefit of actually being there in person and you are relying strictly upon voice contact. There was the added difficulty of dealing with a time difference between Western Australia and Victoria of 2 hours. There were endless phone call and text messages during during (sic) this time. I worried incessantly as my Father lives is (sic) alone and he only has me. Between working a professional job, caring for my two children and caring for my Father there was no extra time to complete my tax return information. I was absolutely prevented from compiling the tax return information.
During her oral evidence, Mrs Crabtree said that "everything" at this time was in disarray. She said that bills were late for payment and that there was a delay in making mortgage payments. She also said in evidence that, "It wasn't a fun time. It was a stressful time."
Mr Gangemi was approved by his GP to travel to Melbourne so Mrs Crabtree could care for him on 15 July 2015. Mr Gangemi then returned home to Perth on 21 July 2015. On that same day, Mrs Crabtree compiled the necessary documents for her tax return and emailed them to her accountant in Melbourne.
An email was sent by Mrs Crabtree to her accountant, Mr Paul Fahey of Knightstone Accountants, on 21 July 2015 at 10.27 am where she stated:
Hi Paul,
Apologies to email you from this email address - hotmail doesn't appear to want to attach documents today!
Please find attached my documents for the 2014 tax year. Apologies for the delay.
Many thanks Paul.
…
Mrs Crabtree said in her oral evidence that this was the first time she had sent documents for the 2014 tax year to her accountant, albeit she said that she would have spoken to Mr Fahey about 3 - 4 months beforehand in relation to the lodgement of her return.
Mrs Crabtree's tax return for the 2013/2014 financial year was then lodged on 5 August 2015.
Mr Gangemi was admitted to the Fiona Stanley Hospital in Perth on 26 August 2015 where he was treated for ineffective endocarditis. He was discharged from hospital on 3 September 2015.
SPECIAL CIRCUMSTANCES
The phrase "special circumstances" is not defined in the Administration Act.
The Respondent, helpfully, referred the Tribunal to a number of authorities whereby this phrase had been considered. I set out below some of the authorities referred to by the Respondent.
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal held as to the expression, "special circumstances" at 3:
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. (emphasis added)
In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J held in relation to the Social Security Act 1991 (Cth) at 545:
The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle's case (at ALR 229; ALD 674), 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. (emphasis added)
In Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9, Besanko J held at 18:
…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 unusual case… (emphasis added)
In Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693, Forgie DP held at 715-716:
…'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.
Finally, the Respondent referred the Tribunal to the reasoning of Humphries DP in Re Secretary, Department of Social Services and Hollis [2015] AATA 941 where it was held at [31] that:
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)
The issues that this Tribunal must resolve, therefore, are whether Mrs Crabtree's circumstances were "special" and, if so, whether they prevented her from lodging her return on time.
Whilst there is little doubt Mrs Crabtree had to deal with many "problems", including the very serious matters relating to her father's health, coupled with working, travelling, and caring for young children, the Tribunal does not find that those circumstances were "unusual" or "uncommon" so as to make them "out of the ordinary" or "special".
My reasons are consistent with the reasoning of Walsh SM in Re Bisceglie and Secretary, Department of Social Services [2016] AATA 294, where it was held at [27]:
Whilst the Tribunal acknowledges that the circumstances in which Ms Di Bisceglie found herself in the relevant period may have been challenging, including juggling running a business, dealing with 'many problems' in managing the business…working long hours (i.e. 7am to 4.30pm, six days a week), dealing with associated paperwork, having family health issues (i.e. helping care for her father who was diagnosed with Alzheimer's disease) and caring for small school-aged children, the Tribunal finds that none of those circumstances are so 'unusual' or 'uncommon' so as to make them 'out of the ordinary' or 'special'.
During the course of the hearing, Mrs Crabtree made the submission that the fact that Mr Gangemi's condition hadn't been diagnosed was "different" and meant that the circumstances were "special". I do not agree. Caring for an elderly parent, often with a particular condition undiagnosed is not, in itself, uncommon. Furthermore, and in any event, even if such circumstances were special (which I do not consider them to be) they did not "prevent" Mrs Crabtree from lodging her 2014 return. In this regard, I note that Mr Gangemi's condition was not diagnosed until after Mrs Crabtree's return was lodged on 5 August 2015.
CONCLUSION
In light of the foregoing, the decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Mr Andrew Cameron, Member

............................[sgd]............................................
Associate
Dated: 5 July 2017

Date of hearing: 11 November 2016

Representative for the Applicant: Self-represented

Advocate for the Respondent:
Belinda Lewis

Department of Human Services

[2017] AATA 1024

5 July 2017

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