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

[2023] AATA 28

Davis and Secretary, Department of Social Services (Social services second review) [2023] AATA 28 (18 January 2023)

Division:GENERAL DIVISION

File Number:          2022/2770

Re:Fayroez Davis

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

Decision

Tribunal:Dr I Alexander, Senior Member

Date:18 January 2023

Place:Sydney

The decision under review is affirmed.

..........................[SGD].............................

Dr I Alexander, Senior Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – effective claim - whether the Applicant faced special circumstances preventing the lodgement of income tax return before requisite deadline – circumstances are not unusual, uncommon, or exceptional - family tax benefit payments deemed not payable - reviewable decision affirmed

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 5, 10, 14

CASES

Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle and Director-General of Social Security [1984] AATA 176
Groth and Secretary, Department of Social Security [1995] FCA 1708

REASONS FOR DECISION

Dr I Alexander, Senior Member

18 January 2023

BACKGROUND

1. On 22 September 2021, Services Australia (‘the Agency’) decided to regard Ms Davis’ claim for family tax benefit (‘FTB’) for the 2019/2020 income year, lodged on 9 August 2021, as non- effective.

2. On 29 March 2022, the AAT1 affirmed the Authorised Review Officer (ARO) decision[1] to affirm the original decision.

   [1] 28 October 2021.

3. In these proceedings, in which all parties attended by telephone, Ms Davis seeks review of the AAT1 decision.

   ISSUES

4. Part 3 -Section 5 of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (‘Administration Act’) provides that, ‘the only way that a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision’.

5. Section 10 (2)(b) of the Administration Act provides that a claim for payment of FTB must be submitted before the end of the following income year unless the Secretary allows for a further period, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making the claim before the end of the following income year.

6. The effect of Section 10 (2)(b) of the Administration Act is that, for Ms Davis’ claim for payment of FTB for the 2019/2020 income year to be effective, the claim needed to be submitted by 30 June 2021.

7. Centrelink records show that Ms Davis commenced her online claim for the 2019/2020 income year on 19 March 2021. However, examination of the Centrelink record of the online claim shows that, although the claim had been completed, it had not been submitted.

8. In August 2021, Ms Davis contacted Centrelink about the progress of her claim and subsequently submitted a paper claim dated 9 August 2021. Centrelink found this claim to be ineffective.

9. It follows that a definitive issue is whether the Tribunal can be satisfied that there were special circumstances that prevented Ms Davis from submitting her claim by 30 June 2021.

10. Also, in relation to a claim for FTB by an individual, Section 14A of the Administration Act provides that if the claimant has not lodged an income tax return before the end of the of the following income year the claim is taken to ‘never to have been made’ unless the Secretary allows for a further period, if the Secretary is satisfied that there are special circumstances that prevented the claimant from lodging the return before the end of the following income year.

11. The effect of Section 14A of the Administration Act is that, for Ms Davis’s claim for payment of FTB for the 2019/2020 income year to be effective, she needed to lodge a tax return by 30 June 2021.

12. Centrelink records show that Ms Davis lodged her tax return for the 2019/2020 income year on 9 August 2021.

13. It follows that a further definitive issue is whether the Tribunal can be satisfied that there were special circumstances that prevented Ms Davis from lodging her 2019/2020 income year tax return by 30 June 2021.

    Ms Davis’ Evidence

14. In response to questioning, during the AAT1 hearing, as to whether there were ‘any incidences ‘that would have affected her at the time when her application for FTB was submitted’, Ms Davis submitted an email, dated 6 October 2021, which stated, inter alia, as follows:

    …I was dealing with my local council regarding unauthorised works which were done on the property prior to me purchasing…This issue started back in Jan 2001…the shade sail erected over my pool did not meet council requirements ….I was then given demolition orders but had the right to apply for an exemption …it was rejected…I was then given the final order for demolition ….I obtained quotes for the demolition and it was upwards of $20K….I finally secured an architect that fought my case with council ….This carried on for over 12 months ..fortunately everything worked out for the best and the sail did not require demolishing …

    To make matters worse around early 2021, my brother was arrested …I took charge of securing a lawyer and working with him to obtain bail…months passed and fortunately bail was granted

    The final nail in the coffin was when my application, although submitted on my end, but due to unforeseen technical issues, did not arrive in the Centrelink data base at the due time …

15. In her oral evidence at the hearing, Ms Davis stated that she started her online claim for FTB on 19 March 2021 but did complete it on that day. She explained that she needed additional details to complete the claim so she ‘stopped and saved and reopened and continued’.

    Ms Davis stated that, when she finally completed the claim, she pressed the submit button ‘maybe a couple of weeks’ or ‘at least a couple of days before for the end of June’. She then explained as follows:

    “…   There was - after I pressed the submit button I waited from some sort of notification because - because I would generally screenshot.  When I generally submit something online it will come up, “You application has been submitted, here’s your reference number”, so I would generally screenshot that. So, I pressed the submit button, I received nothing, I’m going, this is really strange, I haven’t received any receipt. I thought, maybe then send it, I’d get a receipt sent through to my email to say, “Your application has been received”, as what some online organisations do when you submit forms. I’ve then gone straight to my email and thought - I looked and I’ve gone, “Well, I haven’t received anything”, left it at that.  It’s the first time I have claimed for this, so I missed two years - I was separated two years prior and not done a claim, because it didn’t even occur to me to even do the claim. So this time I did it, I was unfamiliar with the whole process so I didn’t know what happens after the claim is submitted, so I just waited around until July sometime and I thought, “I haven’t heard anything, I’ve got to call them”, and that’s when I got told, “There’s no form”

16. In response to a question from the Tribunal, Ms Davis conceded that she was familiar with online purchasing and that she did consider that it was unusual that there had been no confirmation of her submission. She said that she was unfamiliar with how Centrelink operated so she ‘simply waited’ to be notified. When asked why she did not contact Centrelink immediately she said, ‘I just don’t have an answer for that’.

17. When asked why she didn’t enquire about the progress of the FTB claim during three phone calls to Centrelink prior to June 30 2021[2] about ‘disaster payments’, Ms Davis explained that she had not completed the online form and knew she still had time to complete it.

    [2] 30 April 2021, 7 May 2021, 27 May 2021.

18. On further questioning as to why she did not contact Centrelink until August 2021 about the progress of her claim, Ms Davis provided a confused and somewhat unhelpful explanation.  She stated that it was a very stressful time because she was struggling as a single mother during lockdown and was also ‘slapped with demolition orders’ and had to help her ‘brother with bail’.

19. When asked when she lodged her tax return for 2019/2020 financial year, Ms Davis stated that ‘I don’t know when it was lodged’[3].   

    [3] Ms Davis was provided with an opportunity to submit relevant documents after the hearing. No documents were received.

20. On further questioning, Ms Davis agreed that she had sufficient time to complete the online form for her FTB claim prior and emphasised that she believed that she had submitted the completed form prior to 30 June 2021.

21. When asked whether she agreed that the circumstances she had raised in her written submission had , in fact, not  prevented her from completing and submitting the application form, Ms Davis explained that reason for making the submission was because the Member at AAT1 and subsequently, in a conversation with a Centrelink officer she was asked, ‘Is there anything that was going on in your life, at that particular time, that could have maybe caused a lot of undue stress or anxiety that maybe possibly you just didn’t do the one final step and tap submit on your phone? And then informed ‘Gather everything that was going on in your life at that particular time and submit that to us’.

22. Ms Davis claimed that, following a conversation with a Centrelink officer, she believed that her claim would be approved because the officer had said that ‘Yes, I understand, I hear you. I can see how it may have been some sort of electronic error because your form is completed. There’s a completed electronic form’.

23. Ms Davis finally answered the question, inter alia, as follows:

    No, so I’m saying, for you to ask me, because that would not have prevented you from pressing submit, that has been a thorn in my side for over 12 months, worrying about what is going to happen. If I have to demolish that shade sail, where am I going to get $20,000 for some?  After outlaying nearly $8000 on fees, for the architects, surveyor, conveyancer, I mean the surveyor, now if that all doesn’t work, where am I going to get $20,000 from?

    …. So, yes, it may have - if I didn’t submit, if I didn’t do the last final step and just tapped submit, which like I said, is highly unlikely, I don’t know, maybe something distracted me. Maybe I got a call from the council, I don’t know. That could have possibly been it, I can’t tell you. So, I can’t tell you what you want me to say, nor can I agree with you to say that would not have prevented me, because it was an ongoing process…  

24. In response to the Respondent’s submission that, on her own evidence, Ms Davis had sufficient time to follow up on her completed online claim form prior to 30 June 2021, Ms Davis stated inter alia as follows:

    …in regards to you telling, or you stating that I could have had the opportunity, prior to June 2021, to follow up on my application, there was no need, ordinarily, to follow up an application before June 2021, because that was … the date of when the form had to be completed. I assumed, as I have said before, I am very unfamiliar with how Centrelink operate, I have assumed that they would have waited until the end of June to then look at the form and then follow it up. I didn’t think that it would be followed up prior to June 2021, I assumed that everything is done after, because it’s from the beginning of the new financial year now, everything is done after that. That’s why I didn’t think it was necessary to follow up on… on an application that I have until June to complete and for them to assess it.  That’s why I didn’t think there was a reason to follow up on the application.  And because I probably would have only had submitted it a couple of weeks before, I - I would have assumed it would have taken some time, because there’d be hundreds of applications that needed to be processed, so it would be - it’s not going to be done overnight, it would take some time.

25. When asked by the Tribunal why she didn’t immediately contact Centrelink when she failed to receive online confirmation of the submission of her claim, Ms Davis stated, inter alia, as follows: 

    No, I didn’t.  All I can tell you is what happened on that screen, the form was completed, I had to tick a box to say that everything has been answered truthfully, and whatever, like a declaration.  Submit came up on the screen, I pressed submit and the screen just reverted back to the home page…  Once the screen reverted to the home page, I just assumed that it went through.

26. On further questioning, Ms Davis indicated that she had limited experience with online shopping but was aware that usually there was an immediate online confirmation of payment and/or confirmation email. Ms Davis agreed that, when the screen went blank, she did not contemplate any problem with her claim submission and, simply assumed “that it was fine’ because she did not know how Centrelink operated. However, she explained that, when she pressed the submit button and it reverted back to the home screen, ‘what I sort of expected was to get a pop-up screen to give me a reference number for the application …I didn’t get that. So, then I checked my emails …Didn’t get an email …I do understand and acknowledge that it was probably a fault of my own for not following it up’… I didn’t know how Centrelink operates …I didn’t know what their online process are and how their online processes are and how their applications work online.

    Respondent’s evidence

27. In response to a request from the Tribunal to clarify the FTB online application process, the Respondent provided as follows:

    As submitted during the hearing and as per paragraph 16 of the Respondent’s Statement of Facts, Issues and Contentions, a pop-up message is generated confirming submission if an online claim is successfully submitted.

    Customers can also check the status of their claim throughout the claims process by logging onto their account and directing themselves to the online claims page which displays the status of their claim as “incomplete” or “submitted” throughout the claims process from the moment they commence a new claim.

    The Circumstance Change Monitor (CCM) and Claims Tracker refer to the technology that is used to facilitate the aforementioned online display and generate communication to a customer.

    §CCM is utilised to:

    oshows an online tracker to show a claim's progress

    oshows the estimated completion date of a claim

    ogives online messages about a claim's progress after it is submitted

    osends SMS and email messages to customers about a claim's progress after it is submitted

    oif required, sends requests for more information through SMS and email after a claim is submitted

    §Claim tracker is utilised to:

    oCustomers who submit claims online or via ACC with CCM functionality, can track the progress of their claim using their Centrelink online account or the Express Plus Centrelink mobile app.

    oClaim tracker status includes:

    §Submitted

    §In Progress/On Hold

    §Outcome/Completed

    After an FTB claim is submitted, 80% of these claims are currently being processed within 31 days. Once a decision is made, the system automatically generates a notice overnight to be sent to the customer.

    Consideration

28. On consideration of the available evidence, I am satisfied that Ms Davis did not submit her claim for FTB for financial year 2019/2020 by 30 June 2021. I am also satisfied that she did not lodge her tax return for financial year 2019/2020 by 30 June 2021.

29. Therefore, prima facie, Ms Davis is not entitled to receive payment of FTB for the financial year 2019/2020.

30. However, Ms Davis submits that her circumstances in the six months prior to 30 June 2021 were such that they should be considered as ‘special circumstances’ for the purposes of the Administration Act and that her claim for FBT, for the financial year 2019/2020 should be accepted.

31. The term ‘special circumstances’ is not defined in the Administration Act. However, it has been extensively considered in case law.

32. The essential elements of the definition include ‘circumstances that are unusual, uncommon or exceptional’[4],  would require something to distinguish a case from others, ‘to take it out of the usual or ordinary case[5], or something that distinguishes case ‘from the ordinary or usual case[6].

    [4] Beadle and Director-General of Social Security [1984] AATA 176.

    [5] Groth and Secretary, Department of Social Security [1995] FCA 1708.

    [6] Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25.

33. Even if I accept that the circumstances experienced by Ms Davis during early 2021 were ‘unusual’ or ‘uncommon’, the difficulty for Ms Davis is that, for the purposes of Sections 10(2) and 14A(2), the circumstances are required to have ‘prevented’ her from making claim for FTB or lodging her tax return for financial year 2019/2020 by 30 June 2021.

34. In her own evidence Ms Davis submitted that she had completed her online claim for FTB and pressed the online screen ‘submit button’ prior to 30 June 2021.

35. Notwithstanding Ms Davis’ assumption, that her completed claim had been submitted but, in fact, had not been correctly submitted to Centrelink, supports a conclusion that her circumstances had not prevented her from making a claim prior to 30 June 2021.

36. Ms Davis’ explanation to the Tribunal, as to why she made no attempt to explore the reason for the failure to receive confirmation of the submission of her FTB claim until August 2021, I found unconvincing.

37. I note the evidence of the Respondent which indicates that the technology used by Centrelink for the online claims, allows customers to ‘check the status of their claim throughout the claims process by logging onto their account and directing themselves to the online claims page which displays the status of their claim as “incomplete” or “submitted” throughout the claims process from the moment they commence a new claim.’

38. Ms Davis stated in her evidence that she had accessed the online claim on several occasions to update the claim with additional information and, therefore, it is difficult to understand why she did not access the claim form after the ‘the screen went blank’. Also, it is clear from her own evidence that she was not prevented from contacting Centrelink in the preceding months over other issues and could have enquired about her FTB claim.

39. With regard to Ms Davis’ 2019/2020 tax return, which was also lodged on 9 August 2021, there is insufficient evidence before the Tribunal to support a conclusion that her circumstances prevented her from lodging a return prior to 30 June 2021.

40. Finally, I am satisfied that the available evidence does not support a conclusion, that Ms Davis’ circumstances in 2021 prevented her from making an FTB claim for the financial year 2019/2020 or lodging a tax return for the financial year 2019/2020 by 30 June 2021.

41. Therefore, I am satisfied that FTB payments for the financial year 2019/2020 were not payable.

    DECISION

42. For reasons set out above, the Tribunal finds that FTB payments for the financial year 2019/2020 are not payable.

43. The decision under review is affirmed.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

.............................[SGD].............................

Associate

Dated: 18 January 2023

Date(s) of hearing:	6 December 2022
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms S Navaratnam, Services Australia