Dobson and Secretary, Department of Social Services (Social services second review)
[2015] AATA 892
•7 October 2015
Dobson and Secretary, Department of Social Services (Social services second review) [2015] AATA 892 (7 October 2015)
Division
GENERAL DIVISION
File Number
2015/2864
Re
Ben Dobson
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 07 October 2015 Place Sydney The decision under review, being the decision of the Social Security Appeals Tribunal made 30 April 2015 that Mr Dobson is not entitled to payment of the family tax benefit for the financial year ended 30 June 2013, is affirmed.
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Deputy President J W Constance
CATCHWORDS
SOCIAL SECURITY- family tax benefit- extension of time to make application to Tribunal- whether there were special circumstances to justify an extension of time- decision affirmed
LEGISLATION
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 10(2)-(2A)
CASES
Beadle v Director-General of Social Security (1985) 7 ALD 670
Dranichnikov v Centrelink (2003) FCAFC 133
Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488REASONS FOR DECISION
Deputy President J W Constance
7 October 2015
INTRODUCTION
On 30 April 2015 the Social Security Appeals Tribunal affirmed a decision of the Department of Human Services that Mr Dobson was not entitled to an annual lump sum payment of family tax benefit for the financial year ended 30 June 2013.
Mr Dobson has applied to this Tribunal to review this decision.
For the reasons which follow, the decision under review will be affirmed.
BACKGROUND
Mr Dobson was first granted family tax benefit in 2010.
On 12 February 2014 a notice was issued by the Department to Mr Dobson advising him that, to be effective, he must submit a claim for a lump sum payment of the benefit for the financial year ended 30 June 2013, by 30 June 2014. For the financial years ended 30 June 2012 and earlier, an applicant for the benefit had two years, rather than one, in which to make a claim. This change was made by an amendment to the A New Tax System (Family Assistance) (Administration) Act 1999, which I shall refer to as the Administration Act.
On 26 July 2014 Mr Dobson lodged a claim for the annual lump sum payment of family tax benefit relating to the financial year 2012 – 2013.[1]
[1] Exhibit R1 p.14.
LEGISLATION
Subsections 10(2) and 10(2A) of the Administration Act provides:
10 Restrictions on claims for payment of family tax benefit for a past period
10(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 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.
ISSUE FOR DETERMINATION
There is no dispute that Mr Dobson did not make his claim within the 12 month period provided for by the amendment to the Act.
The only issue for determination is whether there are special circumstances that prevented him from making the claim within the prescribed time.
CONSIDERATION
Mr Dobson provided a statement filed in the Tribunal on 1 September 2015[2] and gave evidence.
[2] Exhibit A1.
I am satisfied that Mr Dobson was an honest witness who gave his evidence to the best of his recollection. I am satisfied of the facts set out in the following three paragraphs based on his evidence.
Mr Dobson did not receive the notice forwarded to his address by the Department on 12 February 2014. He did not become aware of the change in the law until after 30 June 2014. Had he been aware of the change he would have lodged his claim before 30 June 2014. He had lodged his tax return for the year ended 30 June 2013 well in advance of that date.
Prior to 30 June 2014 Mr Dobson had received other letters from Centrelink requesting information by a certain date. He had always provided this information before the date requested.
Mr Dobson had registered with Centrelink for electronic messaging so as to receive important information by SMS or email. There is no record of any such message being sent in relation to the change in the legislation.
Mr Dobson argued that not receiving the notice was through no fault of his own and his previous good record in relation to lodgement of his tax returns and claims, are special circumstances which should entitle him to payment of the family tax benefit.
Subsection 10(2) provides the Secretary, and therefore this Tribunal, a discretion to allow a further period for the lodgement of a claim, but only if satisfied that special circumstances exist that prevented Mr Dobson from making his claim in time.
“Special circumstances” is not defined in the Act. However, the Federal Court has provided guidance in several cases involving interpretation of “special circumstances” as used in social security law.
In Beadle v Director-General of Social Security[3] Toohey J. said that the adjective “special” “looks to circumstances that are unusual, uncommon or exceptional”.[4] In Dranichnikov v Centrelink [5] the Full Court of the Federal Court said that it is necessary to identify those “circumstances which distinguish the case in consideration from the usual case”[6].
[3] (1985) 7 ALD 670.
[4] Ibid [12].
[5] (2003) FCAFC 133.
[6] Ibid [66].
There are many cases in which this Tribunal has followed these statements of the law.
Although the Department did take steps to notify Mr Dobson and other likely recipients of the benefit of the change in the law, there is no obligation on it to do so. This principle has been previously stated by the Tribunal in Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.[7]
[7] [2011] AATA 488.
For these reasons I am not satisfied that there are special circumstances which justify the exercise of discretion to extend the time for lodging the claim, even though an extension of only 26 days is required.
CONCLUSION
The decision under review, being the decision of the Social Security Appeals Tribunal made 30 April 2015 that Mr Dobson is not entitled to payment of the family tax benefit for the financial year ended 30 June 2013, will be affirmed.
I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Associate
Dated 20 November 2015
Date(s) of hearing 7 October 2015 Date final submissions received 7 October 2015 Applicant In person Respondent In person
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