Dann and Secretary, Department of Social Services (Social services second review)
[2016] AATA 196
•31 March 2016
Dann and Secretary, Department of Social Services (Social services second review) [2016] AATA 196 (31 March 2016)
| Division | GENERAL DIVISION |
| File Number(s) | 2015/2536 |
| Re | Letitia Dann |
| APPLICANT | |
| And | Secretary, Department of Social Services |
| RESPONDENT |
DECISION
| Tribunal | Senior Member A C Cotter |
| Date | 31 March 2016 |
| Place | Brisbane |
The decision under review is affirmed.
...........................[sgd].............................................
Senior Member A C Cotter
Catchwords
Family Tax Benefit – Late lodgement of Claim - Whether special circumstances – Duty to inform of changes to legislation? – Whether wrong information given by the Department
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 5, 10, 13
Cases
Andrews and Director-General of Social Security [1983] AATA 248
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Re Beadle v Director-General of Social Security (1984) 6 ALD 1
Dobson and Secretary, Department of Social Services [2015] AATA 892
Field and Secretary, Department of Social Services [2015] AATA 903
Groth v Secretary, Department of Social Services (1995) 40 ALD 541
Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488
Scott v Secretary, Department of Social Services [2000] FCA 1241
Wilson and Director-General of Social Services [1981] AATA 88
REASONS FOR DECISION
Senior Member A C Cotter
31 March 2016
INTRODUCTION
Mrs Letitia Dann elected to receive her Family Tax Benefit (“FTB”) for the 2012/2013 financial year by way of a lump sum payment at the end of the financial year.[1] Accordingly, she was required to lodge a lump sum claim for FTB with the Department for that financial year.
[1] See Exhibit 1, T-Documents, T 5, pages 20 – 73, Claim for annual lump sum payment of Family Tax Benefit dated 25 July 2014.
At the commencement of the 2013-2014 financial year, the timeframe for lodging a FTB lump sum past period claim was reduced from two years to one year after the relevant year of claim. That meant that Mrs Dann’s FTB claim form and her and her partner’s tax returns had to be lodged with the Department and the Australian Taxation Office (“ATO”) respectively by 30 June 2014.
The 2012/2013 tax returns for Mrs Dann and her husband were lodged with the ATO on 30 June 2014,[2] but Mrs Dann’s lump sum claim for the relevant year was not lodged until 1 August 2014.[3]
[2] Exhibit 1, T Documents, T 2, page 6, Decision and Reasons for Decision of Social Security Appeals Tribunal dated 27 April 2015, paragraph [8].
[3] Exhibit 1, T Documents, T 11, page 120, file note dated 1 August 2014.
On 1 August 2014, the Department rejected Mrs Dann’s claim.[4]
[4] Ibid.
The decision was reviewed and affirmed by an Authorised Review Officer[5] and later by the then Social Security Appeals Tribunal (“SSAT”).[6]
[5] Exhibit 1, T Documents, T 7, pages 75-78, letter from Authorised Review Officer dated 11 February 2015.
[6] Exhibit 1, T Documents, T 2, pages 4-7, SSAT’s Decision and Reasons for Decision dated 27 April 2015.
Still dissatisfied with the outcome, Mrs Dann has applied to this Tribunal for review of the SSAT’s decision.
THE LEGISLATIVE FRAMEWORK
The relevant legislation applicable to FTB is A New Tax System (Family Assistance) Act 1999 (Cth) (“Act”) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“Administration Act”).
Section 5(1) of the Administration Act states that the only way a person can become entitled to payment of a FTB is to make a claim in accordance with the subdivision in which that section is situated.
FTB can be paid fortnightly or in a lump sum at the end of a financial year. As mentioned earlier, Mrs Dann elected to receive her FTB for the 2012-2013 financial year as a lump sum.
10.As I also mentioned earlier, at the commencement of the 2013-2014 tax year, the time for lodging a lump sum claim for FTB for a past period was reduced from two years to one year after the relevant year of claim. Subsections (2) and (2A) of section 10 of the Administration Act relevantly 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; 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.
11.Section 13 of the Administration Act goes on to provide that if a claim is not effective, it is taken not to have been made.
ISSUE FOR THE TRIBUNAL
12.There is no dispute that Mr and Mrs Dann’s tax returns for the 2012/2013 financial year were lodged with the ATO on 30 June 2014 and that Mrs Dann’s FTB lump sum claim form for that financial year was lodged on 1 August 2014.[7] The only issue that remains for my consideration is whether special circumstances existed such that Mrs Dann was prevented from lodging the lump sum claim form on or before the required date of 30 June 2014.
[7] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 December 2015, paragraphs [23] and [24].
CONSIDERATION
What are “special circumstances”?
13.The expression “special circumstances” is not defined in the Administration Act. However, the expression has been considered extensively by the courts and this Tribunal in the context of both this and other social services legislation. For present purposes, it is suffice to say that the term is often said to refer to circumstances that distinguish the particular case from others; there must be something that takes it out of the usual or ordinary case.[8]
[8] See, for example, Groth v Secretary, Department of Social Security (1995) FCA 1708; Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, [33]; Re Beadle v Director-General of Social Security (1984) 6 ALD 1.
14.It has long been held that lack of knowledge of the law is not an unusual or uncommon experience that would constitute special circumstances for the purposes of s 10(2) of the Administration Act.[9] Equally, it is well established that there is no obligation or general common law duty of care to advise recipients or potential recipients of benefits that might potentially be available under the Act,[10] or of changes in the law.[11]
[9] See Wilson and Director-General of Social Services [1981] AATA 88; Andrews and Director-General of Social Security [1983] AATA 248.
[10] See Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488; Field and Secretary, Department of Social Services [2015] AATA 903; Scott v Secretary, Department of Social Services [2000] FCA 1241.
[11] See Dobson and Secretary, Department of Social Services [2015] AATA 892, [20]; Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488.
Mrs Dann’s circumstances
15.Mrs Dann gave sworn testimony at the hearing. She told me that she works full-time and travels extensively, often being away for extended periods. Her husband has his own business and as a result, their annual income is variable. For those reasons, they prefer to receive lump sum payments of FTB and Child Care Benefit (“CCB”) rather than periodically. In previous years, she recalls having completed the forms to claim FTB and CCB for the preceding year.
16.In the first half of 2014, she and her husband experienced delays in the preparation of their 2012/2013 tax returns. In November 2013, her accountant’s practice had software difficulties, which caused delays in the preparation of the returns. When she had not heard anything early in 2014, she followed up the accountant again and learned that her accountant’s father had suffered a stroke. The returns were further delayed while the accountant attended to her father.
17.Mrs Dann was unsure how that delay would affect her obtaining her FTB and CCB payments. She said that they always had their returns for the relevant financial years lodged in time and that they had never waited for the second year to do so. She was particularly attentive to this issue as the FTB and CCB totalled some thousands of dollars, which made a significant difference to her family.
18.In about February 2014 (she was not certain of the date as she did not record it at the time),[12] Mrs Dann took the opportunity to visit Centrelink’s Mitchelton customer service centre to inquire whether the delays with the tax returns would cause problems. She first spoke to a “concierge-type person” and explained the nature of her query, saying in particular that she had in previous years received lump sum FTB and CCB and wanted to talk about it. She was taken to a female customer service officer for assistance. Mrs Dann did not have her customer reference number with her; instead she gave other personal particulars including her name, date of birth and address. The officer looked up her record on the computer and tilted the screen slightly towards Mrs Dann so that she could see it. Mrs Dann saw that there was a lot of information on the screen, but she made no sense of it; it was not in a reader friendly format. The officer pointed to some information on the screen and told her that she was “fine” and was “current”. Mrs Dann asked whether she had to fill in a form or do anything else besides lodge the returns, but was told no, because the payments would automatically reconcile with the tax returns after they were processed. She queried that again, saying that she recalled that in previous years she had to fill out a form which asked for rarely used information that she had to locate, such as her children’s passport numbers. She was again told that she needed to do no more, apart from lodge the returns, which would lead to an automatic reconciliation. She trusted the officer’s advice and left the service centre thinking that she would receive FTB and CCB once the tax returns were processed. She thought there must have been a change in the procedure such that it was no longer necessary to lodge a claim form.[13]
[12] Mrs Dann told the SSAT that she doubted whether the visit would have been earlier than February 2014, and it could have been in March “or as late as early April”. See Exhibit 1, T Documents, T2, page 6, SSAT’s Decision and Reasons for Decision dated 27 April 2015, paragraph [10].
[13] Exhibit 1, T Documents, T 2, pages 5-6, SSAT’s Decision and Reasons for Decision dated 27 April 2015, paragraph [7].
19.Over the next few months, Mrs Dann followed up her accountant a number of times. She was assured that the returns would be lodged by 30 June. On 2 July 2014, she received a call from the accountant, confirming that the returns had been lodged.
20.A week or so later, Mrs Dann visited the Mitchelton customer service centre to inquire about a Medicare safety net issue. She inquired about the FTB and CCB payments at the same time.
21.Later in the month, on 23 July 2014, she phoned Centrelink as her family was going on holidays; the expected payments would, she said, make the difference between a “good” and a “great” holiday. She was told that she had missed the deadline for claiming, and that nothing further could be done. She asked for information about an appeal, but was sent the wrong information.
22.The next day, she called into the Mitchelton customer service centre. It was about closing time, but she spoke to a group of officers who were together at the reception counter. It was then explained to her that she could not appeal the refusal, as no claim had been lodged by her; a claim had to be lodged before she could appeal. She took with her the forms she needed as well as material relating to FTB and CCB. She sent the form on 29 July 2014. Centrelink’s records show it as being lodged on 1 August 2014.
23.Mrs Dann heard nothing further from Centrelink. She followed up with an online inquiry, but without success.
24.On 23 October 2014, she visited the Mitchelton customer service centre and was referred to a “Fiona” who was one of the officers to whom she spoke in late July. Her search of the records showed that the 2012/2013 claim for FTB had been rejected, but that Mrs Dann had recently been paid CCB.
25.Mrs Dann asked for a receipt from the visit because she had not received anything from Centrelink by way of letters, emails or SMS. She was told that was not possible, as the visit did not involve a transaction, but only an inquiry.
The Secretary’s response
26.It was contended on behalf of the Secretary that Mrs Dann’s account of the February discussion with a customer service officer was not supported by the Department’s Customer Record Access Monitor (“CRAM”) reports for the period 1 January 2014 to 30 April 2014.[14] In fact, it was at odds with them.
[14] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 December 2015, paragraph [38]; and Exhibit 2C, Attachment C to Secretary’s Statement of Facts and Contentions, CRAM reports 1 February 2014 to 1 March 2014. See also Exhibit 1, T Documents, T 10, pages 113 and 114, CRAM reports for 1 January 2014 to 31 January 2014 and for 2 March 2014 to 30 April 2014.
27.CRAM reports contain data about times at which a customer’s record was accessed. Every time a customer or staff member accesses a customer’s record, the access is logged by CRAM. CRAM logging is part of the Department’s audit framework.[15]
[15]Exhibit 4, email from Ms Bronwyn Johns to Mr Nicholas Warren, dated 6 January 2016.
28.Evidence was given by phone by Ms Melissa Croaker, a senior mainframe security programmer for the Department. She testified that there are no known errors within the CRAM report and that everything that has been logged and captured in the data files is “100 percent represented in the report”. She was not aware of any system down-time or any other physical factors that would affect the integrity and the content in the report.[16] Ms Croaker explained that whenever a new screen or portal page is implemented on the Centrelink system, the CRAM logging is tested and the content of reports is verified by the relevant staff members familiar with the data to ensure that everything that is new is captured fully and nothing is missed out or incorrectly reported.[17] In response to a question by me, Ms Croaker said that “everything…has 100 per cent integrity and completeness before being released into production”.[18]
[16] Transcript of hearing, 22 February 2016, page 4, lines 28 to 33.
[17] Ibid, page 4, lines 35 to 41.
[18] Ibid, page 8, lines 35 to 36.
29.Notwithstanding their reliability, it is acknowledged that CRAM reports provide only limited evidentiary material. They cannot resolve, for example, whether a customer attended a Centrelink office if there was no access made to their record during that visit. Nor can the reports provide information about the content of a contact with a customer.[19]
[19] Exhibit 4, email from Ms Bronwyn Johns to Mr Nicholas Warren, dated 6 January 2016.
30.While the relevant CRAM report shows that online services were accessed on 20 February 2014 between 9:45 am and 9:54 am, it reflects that access was by Mrs Dann, and then by her husband, and not by a staff member.[20] On that basis, the Secretary denies Mrs Dann’s version of events. The CRAM reports indicate that was the only occasion on which Mrs Dann’s records were accessed between 1 January 2014 and 30 April 2014.[21]
[20] Ibid. However, email refers to AEDT rather than Queensland time.
[21] See Exhibit 1, T Documents, T 10, pages 113 and 114, CRAM reports for 1 January 2014 to 31 January 2014 and for 2 March 2014 to 30 April 2014; and Exhibit 2C, Attachment C to Secretary’s Statement of Facts and Contentions, CRAM reports 1 February 2014 to 1 March 2014.
31.The Secretary also contends that earlier in February 2014, the Department wrote to Mrs Dann, advising of the change in time frame for lodging a lump sum claim for FTB for the 2012/2013 financial year. Specifically, the Department warned Mrs Dann that she could miss out on her FTB entitlements for 2012/2013 if she failed to lodge a lump sum claim by 30 June 2014.[22] Mrs Dann denies having received that letter, saying that they experience difficulties with postal deliveries from time to time.[23] In response, the Secretary relied upon the statutory presumption of delivery of articles sent by prepaid post to the addressee’s last known address.[24]
[22] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 December 2015, paragraph [5]; and Exhibit 1, T Documents, T 4, page 19, Department’s letter to Mrs Dann dated 12 February 2014.
[23] Transcript of hearing, 22 February 2016, pages 14, line 25 to page 16, line 20.
[24] See Acts Interpretation Act 1901 (Cth) s 28A and Evidence Act 1995 (Cth) s 160.
32.The Secretary also noted that the changes in time frames for the lodgement of claims were published on the Department’s website in September 2013 and were therefore publically available.[25]
[25] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 8 December 2015, paragraph [33] and Exhibit 2B “Attachment B - Changes to the time period for lodging lump sum claims and confirming income”.
Did special circumstances prevent lodging the claim by 30 June 2014?
33.Central to Mrs Dann’s contention is that she had a discussion with a customer service officer in the first part of 2014, during which that officer accessed her records and, based on the information she saw, specifically advised Mrs Dann that it was not necessary for her to lodge a claim for lump sum payment provided that her and her husband’s tax returns were lodged by 30 June. Mrs Dann says that her reliance on that advice prevented her from lodging the claim within the requisite period. As such, she claims it amounts to special circumstances that warrant the extension of the lodgement period.
34.As I mentioned above, the Secretary contends that there is no evidence that a Departmental officer accessed Mrs Dann’s records in February 2014. Indeed, the evidence suggests the contrary, with the CRAM reports revealing that in the first four months of 2014, Mrs Dann’s records were accessed only once, and on that occasion, by Mrs Dann (and possibly her husband) online.
35.The difficulty therefore lies in attempting to reconcile Mrs Dann’s version of events with the access details logged in the CRAM reports.
36.One possible explanation was that Mrs Dann perhaps accessed her records using a computer available to the public at the Mitchelton customer service centre, and consulted a customer service officer during that access. However, Mrs Dann confirmed that did not occur. Nor is it suggested that the officer gave the advice without any reference to Mrs Dann’s records.
37.I suggested that perhaps Mr Dann’s records were accessed rather than Mrs Dann’s, and that his records might reveal access by a Department staff member during the relevant period. As that was not advanced, I assume there was nothing to support that possible explanation.
38.Another possibility was that the incorrect record was accessed by the customer service officer, and that she viewed the record of another customer. That seems unlikely, given that Mrs Dann did not have her customer reference number with her and had to provide a number of personal details as proof of her identity.
39.The only other possible explanation is that the CRAM logging was inaccurate on this occasion. However, no evidence was led to support such a suggestion. Indeed, Ms Croaker testified that, to her knowledge, there was no system down- time or any other physical factor that would affect the integrity and content of the report. Although Mrs Dann raised the prospect of the CRAM report displaying different information from the consumer side as opposed to the technical support side, there was no direct challenge to Ms Croaker’s evidence as to the general reliability of the CRAM logging. While I hesitate to adopt Ms Croaker’s “absolute” language, I am nonetheless satisfied, in the absence of evidence to the contrary, as to the overall reliability and integrity of the CRAM logging system and the CRAM reports.
40.Based on the CRAM reports and in the absence of any evidence to the contrary corroborating Mrs Dann’s version, I am satisfied, on the balance of probabilities, that the only access to Mrs Dann’s records during the first four months of 2014 was by her (and perhaps by her husband) online on 20 February 2014. It follows that I am not satisfied that a customer service officer accessed Mrs Dann’s records during that period and, in the context of viewing her records, specifically advised Mrs Dann that she did not have to lodge a lump sum claim form within the required period so long as she and her husband lodged their tax returns within that time.
41.I am strengthened in that conclusion by a number of other factors.
42.First, this was not the first occasion on which Mrs Dann had claimed for a lump sum FTB payment. She was aware of the requirements, particularly the strict timing, from the previous occasions on which she claimed. Given the significance she placed on receiving the payments and her awareness of the strict time constraints around claiming, it is surprising that she did not further question the advice which she allegedly received, or proceed on a train of inquiry to verify what she had been told.
43.While it appears that her family has experienced ongoing postal problems over several years and that she may well not have received the Department’s letter of 12 February 2014 advising of the changes in the FTB system, it seems likely that Mrs Dann at least received online notification that correspondence had been sent to her by Centrelink. The CRAM report for the period 1 February 2014 to 1 March 2014 reveals that at 9:46 am on 20 February, the online letters portlet was accessed by Mrs Dann. It listed the letters received by her online from Centrelink or the Family Assistance Office generated within the preceding 90 days. It showed “most of your letters, including those that have been sent to your postal address”.[26] Among those listed was the letter of 12 February 2014, with a notation that it related to FTB. While I appreciate there is no evidence that Mrs Dann actually accessed and viewed the PDF version of that letter, it is surprising that reference did not lead her on a train of inquiry, given the difficulties experienced with their postal deliveries and the importance of the FTB payments to her family. While Mrs Dann does not recall having seen the notification on that occasion, it is clear she was familiar with the correspondence portal. One customer service officer noted the following discussion with her: [27]
[26] Exhibit 2C, Attachment C to Secretary’s Statement of Facts and Contentions, CRAM report 1 February 2014 to 1 March 2014” page 2 of 4.
[27] Exhibit 1, T Documents, T 11, page 117, Department electronic file note dated 24 October 2014. (My emphasis added.)
Customer also states she has not received any letter notifications via txt or email in the past 12 months that on random occasions she accesses online it is only then she can see letters have been sent. Therefore cust states she did not receive or read any letters notifying her 12/13 must be claimed by 30.06.2014 but even if she did she had already checked in Feb 2014 and was advised she did not have to take any action for this year.
44.Giving Mrs Dann the benefit of the doubt that she did not receive the 12 February 2014 letter in the post, I am satisfied that she would nevertheless have had the means to lead her on an appropriate train of inquiry.
45.Finally, it appears from the communication strategy prepared by the Department at the time that a variety of means were employed to inform recipients or potential recipients of the changes in the legislation. That included: the mail out between 10 and 14 February 2014 to a targeted group of customers (such as Mrs Dann) who had a history of claiming lump sum payments and who did not regularly receive letters from the Department; communicating with accountants through the ATO e-bulletin; and messages on the Department’s website and on social media. The strategy also included staff training and the provision of resources to assist staff in communicating the messages about the changes.[28] Considering the clear focus on the changes, especially at the time of the alleged discussion with the customer service officer, and the training provided to staff at the time, it seems unlikely that a customer service officer would provide advice which was completely at odds with the changes being implemented.
[28] See Exhibit 1, T Documents, T 9, pages 103-104, Family Assistance Guide, Assessing special circumstances extensions for customers unable to meet lodgement and other specific requirements for family assistance, communication strategy.
46.For those reasons, I am not satisfied that the discussion took place as contended, or that Mrs Dann was incorrectly advised, as she contends. I therefore do not consider that there are “special circumstances” which justify the granting of an extension of time for the lodgement of Mrs Dann’s claim.
47.For completeness, I note that after adjourning the matter and reserving my decision, I received a letter from Mrs Dann, outlining her experience at the Mitchelton customer service centre on 29 February this year. She said that she had attended that office to obtain a Customer Reference Number for her baby son and to register him for both CCB and Child Care Rebate, as well as to check that there was nothing outstanding for the next FTB year. To Mrs Dann’s surprise, the customer service officer who attended to her told her that as their tax returns had met the 30 June deadline, payment would be reconciled without the need for further paperwork. That was also confirmed by an adjacent team member. It was said that was because Mrs Dann was already registered for zero rate with a lump sum return.[29]
[29] Letter from Mrs Dann to Senior Member Cotter dated 29 February 2016.
48.I had the letter referred to the Secretary’s lawyer, who made inquiries of the officer in question. The officer clarified that, prior to June 2015, Mrs Dann was in fact required to lodge claims for FTB. However, after that date, Mrs Dann was on a different payment delivery option where she no longer needed to lodge a claim for FTB in order to receive her lump sum FTB payment.[30] In other words, the option most recently described to Mrs Dann did not apply to the 2012/2013 year. That would appear to address the concern raised by Mrs Dann. Despite her having been copied to the response from the Secretary’s lawyer, I have received nothing further from her on that aspect.
[30] Emails from Mr Nicholas Warren to Ms Elaine Riggs dated 2 and 9 March 2016.
CONCLUSION
49.I do not consider that Mrs Dann’s circumstances were special so as to justify an extension of time for the lodgement of her lump sum FTB claim for the 2012/2013 year. As a consequence, her lump sum FTB claim for that year was not effective and pursuant to s 13 of the Administration Act, is taken not to have been made.
50.The decision under review is therefore affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter.
…………[sgd]………………..
Associate
Dated 31 March 2016
Date of hearing 16 December 2015; 27 January 2016; and
22 February 2016
Date final submissions received 22 February 2016 and 9 March 2016 (email)
Applicant Letitia Dann, in person
Advocate for Respondent Nicholas Warren, Department of Human Services
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