Field; Secretary, Department of Social Services and (Social services second review)
[2015] AATA 903
•25 November 2015
Field; Secretary, Department of Social Services and (Social services second review) [2015] AATA 903 (25 November 2015)
Division: GENERAL DIVISION
File Number: 2015/2028
Re: SECRETARY, DEPARTMENT OF SOCIAL SERVICES
APPLICANT
And:EMILY FIELD
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 25 November 2015
Place Melbourne
The Tribunal decides to:
1.set aside the decision of the Social Security Appeals Tribunal dated 26 March 2015; and
2.substitute for that decision a decision affirming the decision made by a delegate of the respondent on 10 September 2014 and affirmed by an Authorised Review Officer on 4 February 2015.
…[sgd] S A Forgie……..
Deputy President
CATCHWORDS
SOCIAL SECURITY – FAMILY TAX BENEFIT– change in period of time allowed to lodge claim - whether any requirement to notify of change in law – no requirement - whether special circumstances – no special circumstances - decision set aside
PRACTICE AND PROCEDURE – WORDS AND PHRASES – “have regard to”
LEGISLATION
Acts Interpretation Act 1901; s 19A(3)(a)
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999; sections 8, 10, 13
Electronic Transactions Act 1999; section 9
Human Services (Centrelink) Act 1997; sections 7, 8, 8A
Social Security (Administration) Act 1999; sections 3, 8, 234CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; (2007) 44 AAR 436
Beadle v Director-General of Social Security (1985) 60 ALR 225; 7 ALD 670
Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Scott and Another v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599OTHER MATERIAL
Administrative Arrangements Order
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION
Mrs Field has one dependent child and has, for the past 17 years or so, been in receipt of Family Tax Benefit (FTB). In most cases, FTB may be paid to an individual either by instalment or, in respect of a past period, in a lump sum. The legislation named A New Tax System (Family Assistance) (Administration) Act 1999 (FAA Act) sets out how a person may make a claim for payment by either means and when a claim for either will be effective. In so far as a claim for a past period is concerned, the period must fall wholly within one income year.[1] If it does not, a claim for FTB will not be effective and there will be no basis on which to make any payment of FTB. Furthermore, a claim will not be effective if:
“… 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.”
Any further period allowed by the Secretary[2] must not end later than the end of the second income year after the relevant year.[3] Section 13(1) of the FAA provides that if an effective claim is made, the Secretary of Social Services (Secretary) must determine it in accordance with Subdivision B of Division 1 of Part 3 of the FAA Act. If a claim is not effective, it is taken not to have been made.
[1] FAA Act; s 10(2)(a)
[2] Consistently with Part 16 of the Administrative Arrangements Order, the reference to the Secretary in this context is a reference to the Secretary of the Department of Social Services and see also s 19A(3)(a) of the Acts Interpretation Act 1901.
[3] FAA Act; s 10(2A)
Mrs Field made a claim for a lump sum of FTB for a past period when she submitted it online on 25 August 2014. Her claim was in respect of the 2012/2013 income year. On 10 September 2014, a delegate of the Secretary decided that Mrs Field’s claim was not effective as she had made it after the end of the first income year after the 2012/2013 income year and there were no special circumstances that had prevented her from making the claim before the end of that first income year. An Authorised Review Officer (ARO) affirmed the delegate’s decision on 4 February 2015 but, on 26 March 2015, the then Social Security Appeals Tribunal (SSAT) set it aside. In place of the delegate’s decision, the SSAT substituted a decision that there were special circumstances preventing Mrs Field from making her claim within time. The basis of the SSAT’s reasons for its decision was its view that Mrs Field had not received proper notification of a requirement introduced on 28 June 2013[4] that a claim for FTB in respect of a past period must be made before the end of the first income year after the relevant income year. Prior to then, an individual had two income years after the relevant income year in which to lodge a claim. Notification of the change in the law had been sent electronically to Mrs Field in an email dated 12 February 2014 but it had been routed or allocated to her Junk Mail folder rather than to her Inbox. That meant that the Department of Social Services (Department) had not complied with s 9(1)(a) of the Electronic Transactions Act 1999 (ET Act) so that there were special circumstances permitting an extension of the time in which Mrs Field could lodge her claim and it would be effective.
[4] Family Assistance and Other Legislation Amendment Act 2013 Act No. 70 of 2013; s 2, Item 9G referring to the amendment of s 10(2)(b) and the insertion of s 10(2A) by s 3, Schedule 2B, Part 1; cll 15 and 16.
For the reasons given below, I have decided that I am not satisfied that there were special circumstances that prevented Mrs Field from lodging her claim for lump sum FTB for the 2012/2013 income year within time. Therefore, I have set aside the SSAT’s decision and substituted a decision that her claim was not effective.
BACKGROUND
There is no dispute between the parties regarding the facts I have found in this section of my reasons. Reference is made to the evidence on which each finding is made. In this section, I have referred both to Centrelink and to the Department of Human Services (DHS) as well as to the Department of Social Services (DSS) and its Secretary. That can be confusing and I will explain briefly why each is relevant.
The FAA Act refers to the “Secretary”. That is a reference to the Secretary of DSS for, except to the extent administered by the Minister for Education and Training,[5] the FAA Act, and the related A New Tax System (Family Assistance) Act 1999 (Family Assistance Act), are administered by the Minister for Social Services. That is provided for in the Administrative Arrangements Order made by the Governor-General from time to time. Responsibility to make decisions under those Acts is given to the Secretary of the Minister’s Department, and so of DSS, and provision is made for delegation of that power.
[5] Administrative Arrangements Order; Part 5
Reference is made in the notices, however, to Centrelink and DHS and not to DSS. That comes about because of administrative arrangements that have been put in place. In practical terms, Centrelink is staffed by officers of DHS. Under Part 11 of the Administrative Arrangements Order, DHS is responsible for the:
“Design, development, delivery, co-ordination and monitoring of government services, social security, child support, students, families, aged care and health programmes (excluding Medicare provider compliance), superannuation release and Australian Hearing Services”.
The Human Services (Centrelink) Act 1997 (HSC Act) provides for there to be an office known as Chief Executive Centrelink. The occupant of that office is a Senior Executive Service employee in DHS: HSC Act; ss 7(1) and (2). Among the functions of the Chief Executive Centrelink are the service delivery functions described in s 8A of the HSC Act: HSC Act; s 8(1)(a). Among them are “… to provide services, benefits, programs or facilities that are provided for by the Commonwealth for a purpose for which the Parliament has the power to make laws”: HSC Act; s 8A(a). Benefits provided under the FAA Act come within that description. Section 234(2) of the Social Security (Administration) Act 1999 (SSA Act) provides that the Secretary may delegate to the Chief Executive Centrelink or a DHS employee all or any of the powers of the Secretary under the social security law. It follows that notices given under the FAA Act or Family Assistance Act may be given under the name of Centrelink or DHS and need not be given under the name of DSS.
Mrs Field’s elections for receiving Centrelink communications
On 3 July 2007, Mrs Field provided Centrelink with an email address and continued to do so until 24 August 2014.[6] For the period from 30 March 2013 to 24 August 2014, Mrs Field also subscribed to Centrelink’s electronic messaging service.[7] On 30 March 2013, Centrelink sent Mrs Field an email stating:
[6] Exhibit B: Statement of Kim Seagrim, an officer of DHS’s Digital and Project Team/Output Management Team, Customer Correspondence Branch, Service Information Division: Exhibit B at [1] and Attachment 1
[7] Exhibit B at [4] and Attachment 2
“Subject: Welcome to Centrelink Electronic Message Reminders
Please DO NOT REPLY by email as this mailbox is not monitored.
Welcome to the Electronic Message service. Centrelink will email you with reminders and important information.
For Terms and Conditions or to opt out
- go to the Australian Government Department of Human Services website and logon to Online Services, or
- call 1800 199 575 with your Customer Access Number.
Our Service Centres have Online Services available to use if you do not have access to a computer at home.
If you are outside Australia, go to the Australian Government Department of Human Services website for a list of international freecall numbers.”[8]
[8] Exhibit B at Attachment 2
Mrs Field was not registered for the DHS’s online letters at any relevant time. She did not have that access until 23 March 2015.[9] On that day, DHS sent her an email reading, in part:
[9] Exhibit B at [5] and Attachment 3
“…
We are writing to confirm that you will now start to receive most of your Centrelink letters online instead of through the mail. You will continue, however, to receive some letters at your postal address, such as letters with reply-paid envelopes, paper forms that we require you to fill in and return, and some brochures that are not available online.
You will receive an email or SMS telling you when there is a new online letter available to view.
You may view your letters by going to:
- the inbox in your myGov account. If you do not have a myGov account, you will need to create one first by going to the myGov website and then linking it to Centrelink
- one of our Express Plus mobile apps. If you do not have an Express Plus mobile app, you can download one to your smart device from the App Store or Google Play(™), or
- the Australian Government Department of Human Services website and logging on to Centrelink services online.
More information
For more information about online letters, please go to the Australian Government Department of Human Services website and search for ‘online letters’ or go to the myGov website.
This service is voluntary and you can withdraw at any time. You can do this by accessing your Centrelink services online, calling us or visiting one of our service centres.”[10]
[10] Exhibit 3
Legislative framework
Mrs Field has consistently claimed FTB in a lump sum in respect of a past period. I find that her practice has been to lodge her claim for FTB at some time after she has submitted her tax return for the relevant income year. Up until 28 June 2013, s 10(2)(b) of the FAA had read:
“(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 but the claim is made after the end of the 2 income years immediately following that income year.”
On 28 June 2013, s 10(2)(b) was repealed by the Family Assistance and Other Legislation Amendment Act 2013 (FOLA Act) and replaced with its current wording: see [2] above.[11] Item 56(1) of Schedule 2B provided that:
“The amendments made by items 15 to 21 apply in relation to a past period falling in the 2012‑13 income year or a later income year.”
[11] FOLA Act; s 3 and Schedule 2B; Item 15 read with s 2(1); Item 9G
Centrelink’s notification of changes of law
On 26 September 2013, DHS published information on its website regarding the changes made to the time within which a claim for lodgement of a lump sum claim had to be made. It was located on the “Maintenance” tabs on the FTB, Child Care Benefit and Child Care Rebate[12] and read, in part:
“From 1 July 2013, the amount of time you have to lodge a lump sum claim … changed. You have one year instead of two years to: lodge a lump sum claim for Family Tax Benefit … Important dates for claiming You have until 30 June 2014 to do any of the above things for the 2012-2013 financial year …”[13]
[12] Exhibit C: Statement of Ms Michelle Glasspool, an officer in DHS’s FTB Reconciliation and Annual Assessment Team, Families and Child Support Policy Branch at [4] and Attachment MG1
[13] Exhibit C at [4]
On 12 February 2014, DHS sent an email correctly addressed to Mrs Field’s email address. The substance of the email appeared in the following form:
“… Please DO NOT REPLY by email as this mailbox is not monitored. This message is from the Department of Human Services. In the May 2013 Federal Budget, changes were announced that reduce the period of time that families have to claim and/or provide information for family assistance payments. From the 2012-2013 financial year onwards, you now have one year instead of two years to: - submit a lump sum claim for Family Tax Benefit, and/or Child Care Benefit – confirm your income for Family Tax Benefit – this means that you and your partner (if you have one) need to lodge your tax return/s with the Australian Taxation Office, or tell us that you do not need to lodge a tax return, and – ensure that your child/ren has/have met any immunisation or health check requirements for the relevant financial years. You will also have one year instead of two years to submit a claim and confirm your income for payment of the Single Income Family Supplement. It is important that you are aware of the reduced period of time so that you do not miss out on your full entitlements, including Family Tax Benefit supplements and the Child Care Rebate. What you need to do If you have not already claimed family assistance payments for the 2012-2013 financial year, and you intend to do so, you will need to submit a claim and confirm your income by 30 June 2014. You can claim online by going to the myGov website and signing in to your account to access Centrelink services. If you do not have a myGov account, you will need to create one first and then link it to Centrelink. You can also check your child/ren’s immunisation status and advise the completion of a health check through your myGov account. To check an immunisation status, you will need to link your myGov account to Medicare. Information you should know If you would like more information, please go to Australian Government Department of Human Services website and search for ‘tax time’. You should then select ‘Changes to the time period for lodging lump sum claims and confirming income’.
*** END OF LETTER ***”[14]
[14] T documents; T3 at 11
There was no dispute between the parties, and I find, that DHS’s email was neither rejected by Mrs Field’s internet services provider nor returned to DHS as undeliverable. Rather than routing the email to Mrs Field’s inbox, however, her internet services provider routed it to her Junk Mail folder. She did not see the email in her Junk Mail folder until a date on or after 3 September 2014 when an officer of Centrelink suggested that she should look for the email in that location.[15]
[15] T documents; T9 at 27-30
Mrs Field’s attempt to lodge her claim for lump sum FTB
On 25 August 2014, Mrs Field lodged her claim for lump sum FTB in respect of the 2012/2013 income year. She did so online after she had submitted her income tax return in respect of that year some three months earlier on 30 May 2014.
SUBMISSIONS
On behalf of the Secretary, Mr Noonan submitted that Mrs Field’s circumstances may not be described as “special circumstances”. That is an expression that is not defined in the FAA Act but it has been considered in a number of authorities, Mr Noonan continued. Relying on the evidence of Ms Seagrim,[16] he submitted that it is not departmental practice to send an email or Short Message Service (SMS) message to a Centrelink customer advising of the delivery of another email. The fact that the Department’s email arrived in Mrs Field’s Junk Mail folder does not make her circumstances special. In any event, the Department was not obliged to give notice of the change to the law to any recipients, or potential recipients, of FTB. He referred to the decision of Re Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.[17] The ET Act has no relevance in this case as it applies when the Commonwealth is required to give information in writing. The Department was not required to advise of the change of the law.
[16] Exhibit B at [6]
[17] [2011] AATA 488; Mr Wulf, Member
In support of her case, Mrs Field submitted that the expression “special circumstances” is incapable of definition. As a single parent without other government assistance and in receipt of a very low income from her own business, she relies heavily on the FTB and on the school bonus. She has made sacrifices to educate her son. Those payments have become even more important since she separated from her husband. In the past 17 years, she has never been late in lodging her claim for a lump sum FTB. She has always been conscientious in complying with Centrelink’s requirements.
The decision to change the time for lodgement of a claim for FTB from two years to one was, Mrs Field submitted, unprecedented, unexplained and unusual. Although she understood that the Department had no obligation to communicate the change in the law to her, it had chosen to do so. When it chose to do so, it should have chosen a means of communication that was accessible by the people concerned by the change. As it turned out, the Department communicated in a manner that was ineffective.
Section 8 of the SSA Act requires the Secretary of the Department of Social Services to deliver services in a fair manner. Mrs Field submitted that the manner in which the Department had done so in her case was unfair and confusing. Ms Seagrim states that it is not the Department’s practice to send an email or SMS to a customer about the delivery of another email but she had received an email stating that she would receive an email. All other emails sent by the Department had been delivered to the Inbox of her email service. On this occasion, the email had been delivered to her Junk Mail and she had not had a reason to look in Junk Mail for an email from the Department. She suspected that the email had gone to Junk Mail because of its formatting. Its formatting had made it very difficult to read.
CONSIDERATION
What are special circumstances?
In Groth v Secretary, Department of Social Security,[18] Kiefel J considered the meaning of the expression “special circumstances” in the context of whether Mr Groth’s circumstances met that description so that all or part of a compensation payment he had received could be treated as not having been made. That was the effect of s 1184 of the Social Security Act 1991 (SS Act). If all or part of the payment could be treated in that way, s 1168(1) of the SS Act did not take effect and Mr Groth would be entitled to be paid a greater amount of disability payment than would otherwise be the case. Kiefel J said:
“ The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case ([Beadle v Director-General of Social Security (1985) 60 ALR 225; 7 ALD 670] 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. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied. … In the context of some discretionary provisions, for example one which provides for a longer period of time to be fixed in ‘special circumstances’ as in Beadle’s case, it may be relevant to look at how a person comes to require the exercise of the discretion and therefore to the events preceding the arbitrary provision coming into effect. This is not such a case, for all that the background facts tell us is that the Act applies to Mr Groth. … While the means by which persons become qualified to compensation payments, the amount they receive and the legislation pursuant to which they become so entitled will vary, what they will all have in common is that
s 1168 will then apply to them. Absent some other feature, the only question which can be said to arise in this case is that posed by the tribunal namely: what then would be the effect of applying s 1168 to a person in Mr Groth’s position?”[19][18] [1995] FCA 1708; (1995) 40 ALD 541
[19] [1995] FCA 1708; (1995) 40 ALD 541 at [12]; 545
In the case of Beadle v Director-General of Social Security, to which Kiefel J had referred, the Full Court made the general observation that:
“… We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”[20]
[20] (1985) 60 ALR 225; 7 ALD 670 at 228; 674 per Bowen CJ, Fisher and Lockhart JJ
In deciding Angelakos v Secretary, Department of Employment and Workplace Relations,[21] Besanko J warned against requiring there to be exceptional circumstances before there may be said to be special circumstances:
“… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. 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 usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.”[22]
[21] [2007] FCA 25; (2007) 44 AAR 436
[22] [2007] FCA 25; (2007) 44 AAR 436 at [33]; 445
Is the ET Act relevant?
The SSAT’s conclusion that there were special circumstances was based on its view that the ET Act sets out the way in which the Secretary may communicate with Mrs Field by email. It relied in particular on s 9(1)(a) of the ET Act. That section provides:
“If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:
(a)in all cases – at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; …” (emphasis added)
Is the Secretary required to give information in writing under a Commonwealth law?
A.Is there a legislative requirement?
If a law of the Commonwealth does not require the Secretary to give information in writing, s 9(1)(a) does not have any application. I will begin with the terms of the FAA Act and the SSA Act. There is nothing in either of them that expressly requires the Secretary, whether personally or through the services provided by DHS or Centrelink, to notify those who have claimed FTB in the past or who may do so in the future that there have been changes in the law. The same is true of the Family Assistance Act.
Although not expressly requiring information about changes in the law to the attention of recipients or potential recipients, does s 8 of the SSA contain an implicit requirement to that effect? It requires that, in administering the social security law, the Secretary have regard to the desirability of achieving the results listed in s 8(1)(a) and the needs it identifies in ss 8(1)(b) to (f). Mrs Field referred particularly to s 8(1)(a)(iii) but I will set out the whole of s 8(1)(a):
“In administering the social security law, the Secretary is to have regard to:
(a)the desirability of achieving the following results:
(i)the ready availability to members of the public of advice and information services relating to income support generally and to the social security payments that are available;
(ii)the ready availability of publications containing clear statements about income support entitlements and procedural requirements;
(iii)the delivery of services under the law in a fair, courteous, prompt and cost-efficient manner;
(iv)the development of a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on social security recipients;
(v)the establishment of procedures to ensure that abuses of the social security system are minimised; …”
In the context of this case, it is important to note that the section is relevant only in the Secretary’s administering the social security law. References in the SSA to the “social security law” are references to that Act itself, the SS Act and to “… any other Act that is expressed to form part of the social security law.”[23] The FAA Act does not contain any provision stating that it forms part of the social security law. Therefore, the obligation imposed by s 8 upon the Secretary does not relate to her administration of the FAA Act.
[23] SSA Act; s 3(3)
Even if the FAA Act were to form part of the social security law, the obligation that is imposed is that the Secretary “have regard to” the various factors set out in s 8(1) in administering the social security law. The factors listed in s 8(1)(a) are expressed in terms of “the desirability of achieving … results” that are listed. In view of the way in which the authorities have interpreted the expression “have regard to”, those factors cannot be read as requiring the Secretary to achieve absolute results. The authorities include Singh v Minister for Immigration and Multicultural Affairs[24] (Singh) decided by Sackville J. He did so in considering s 54(1) of the Migration Act 1958 (Migration Act), which required the Minister to have regard to all of the information in an application for a visa before deciding whether to grant or refuse to grant that visa:
[24] [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599
(1)“… This expression is capable of different meanings, depending on its context. … [A] statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and “give weight to them as a fundamental element in making his [or her] determination”: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase “have regard to” can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.”[25]
(2)Whether the obligation is one or the other is determined by reference to the nature of the factors to which regard must be had. In the case of the obligation in s 54(1) of the Migration Act to have regard to all of the information in an application, Sackville J considered both the nature of the information of which regard was required and the practicalities of the decision-making process:
“…It could hardly have been contemplated by the drafters that every piece of information selected for mention by an applicant, no matter how marginal its relevance to the issues to be determined, must be treated by the decision-maker as a "fundamental element" in making the determination. The ordinary meaning of the words in s 54(l) does not suggest otherwise. Moreover, such a construction would render the decision-making process unworkable, not least because the
Minister would have to treat the matters referred to in s 501(6)(c) of the Migration Act and all the information in the application as fundamental elements in determining whether an applicant passes the character test.”[26]
(3)An obligation to “have regard to” various factors is not “… satisfied merely by … the decision-maker, being aware of the information … The expression ‘have regard to’ suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.”[27]
[25] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [54]; 163; 609-610
[26] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [57]; 164; 610-611
[27] Singh [2001] FCA 389; (2001) 109 FCR 152; 194 ALR 599 at [58]; 164; 611
Having regard to these principles, there is nothing in s 8(1) that would oblige the Secretary to inform each recipient, or potential recipient, of benefits under the social security law of the law and changes in the law affecting any particular payment. That would not be an achievable outcome given the great variety of circumstances in which recipients, or potential recipients, find themselves. The Secretary is not to know whether recipients, or potential recipients, will wish to lodge a claim for FTB in any particular income year. She will not know their particular circumstances before they lodge any claim that they may make. What the SAA Act does require under s 8(1)(i) is that, in establishing the systems and procedures required to administer social security law, the Secretary have regard to the desirability of there being ready availability of advice and information relating to income support generally and to the social security payments that are available. There is no requirement that she give written information to recipients, or potential recipients, under the social security law.
B.Is there a common law duty to provide information?
Putting aside the legislative provisions and turning to the common law, Beaumont and French JJ decided in Scott and Another v Secretary, Department of Social Security[28] that there is:
“[20] … no general common law duty of care to advise the appellants of benefits that might potentially be available under the Act.
…
[23] … It is one thing to expect a department (reasonably) to communicate accurately the general range of benefits available; it is another to expect the department to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances.”[29]
[28] [2000] FCA 1241; (2000) 65 ALD 79
[29] [2000] FCA 1241; (2000) 65 ALD 79 at 87-88
In writing that it is one thing to expect a department (reasonably) to communicate accurately the general range of benefits available, it might be thought that Beaumont and French JJ thought that there was room for a finding that the Secretary owed a duty of care in certain circumstances. That is not the case for they rejected an argument that a claim for damages for negligence was sustainable. An action for mandamus or orders made on judicial review ordering specific performance of a public duty otherwise not performed would generally be all that would be available. Except in the case of a claim for misfeasance, common law damages would not be available for failure to act with due expedition or, I would suggest, failure to provide information of a change in the law.[30] There is no suggestion of misfeasance in this case.
C.Would the Secretary have been taken to have given notice had she been obliged to do so?
[30] [2000] FCA 1241; (2000) 65 ALD 79 at [24]; 87-88
In the absence of any legislative duty or common law duty to provide information, s 9(1)(a) of the ET Act has no application. Would the Secretary have been taken to have given Mrs Field notice of the change in the law had she been required to do so? That question is asked by reference to the time at which the information was communicated by electronic means and not by reference to the time at which it was received or would be expected to have been received. That is clear from the wording of s 9(1)(a) itself. The question to be asked at the time it was given was whether it was reasonable to expect that the information would be reasonably accessible is a question to be determined at the time that it was given by electronic means; not at the time it was received by the recipient. What is meant by “accessible”? Given the ordinary meanings of the word “accessible”[31] and the fact that s 9 of the ET Act, and indeed, the ET Act generally is concerned with communication of information, it seems to me that it is used in the sense of the information’s being able to be retrieved by the recipient easily.
[31] “… adj 1 able to be reached easily. 2 willing to talk to or have friendly discussions with people. 3 easy to understand and enjoy or get some benefit from. …”: Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Had the Secretary been required to give information regarding the change in the law to Mrs Field, the time at which the information would have been given to her would have been determined by reference to s 14 of the ET Act. Assuming there was no different agreement between Mrs Field and DHS, application of that provision depends on whether the electronic communication left an information system under the control of DHS or not. If the former, the time of dispatch of the electronic communication is the time it leaves the information system. If the latter, its time of dispatch is taken to be the time that it is received by the recipient. Where the addressee of an electronic communication has designated an electronic address, the time of receipt of that electronic communication “… is the time when the electronic communication becomes capable of being retrieved by the addressee at …” that electronic address.[32] Where an electronic communication is addressed to an electronic address of the addressee, the time of its receipt is the time at which not only does it become capable of being retrieved by the addressee at that address but the addressee has also become aware that the electronic communication has been sent to that address.[33]
[32] ET Act; s 14A(1)(a)
[33] ET Act; s 14A(1)(b)
Although the ET Act does not apply for the reasons I have given, the last two paragraphs provide a useful guideline as to whether it was fair to expect that Mrs Field was given information regarding the change in law concerning the lodgement of a claim for lump sum FTB. The information regarding the change in the law was sent to Mrs Field by electronic communication in the form of an email. On the evidence that I have, it is reasonable to expect that, at the time that the email was sent, it would be readily accessible in the sense of being able to be retrieved by Mrs Field. As it turned out, the email was delivered to her Junk Mail box, rather than to her Inbox where she expected her emails to appear. Accessibility in the sense in which it is used in s 9(1)(a) is not to be read as a requirement that electronic communications are delivered to one folder rather than another. That would be to read into s 9(1)(a) a level of specificity that it does not require. When an email is sent to an email address designated by its intended recipient, it is accessible once it becomes capable of being retrieved by the addressee. It is capable of being retrieved even though the recipient may not be aware of its arrival because it has been placed in a folder in his or her email service different from that in which he or she expects to find newly delivered emails.
Whether the information must also be readily accessible in the sense of being easily understood is less clear. It is arguable that its being able to be understood is more appropriately considered in the context of whether the “information was given” rather than in the context of the manner in which it was communicated. Whichever is the appropriate interpretation, I find that the information regarding the change in law was conveyed in the email and that it was accessible in the sense of being easily understood. That is so even though I recognise that the formatting of the email left a lot to be desired. It was closely written and required careful reading. Despite its shortcomings in expression and formatting, I find that it was reasonable to expect that the recipient of the information would be able to understand it.
Are Mrs Field’s circumstances special circumstances?
Unless I am satisfied that special circumstances prevented Mrs Field from making her claim for lump sum FTB for the 2012/2013 income year before 30 June 2014, her claim will not be an effective claim and the Secretary had no basis on which to determine her entitlement, or otherwise, to FTB. It will not be effective by operation of s 10(2) and, putting aside the issue of special circumstances, not as a result of the exercise of a discretionary decision by the Secretary. The circumstances that must be assessed as special or otherwise are those that prevented Mrs Field from making her claim.
Mrs Field has relied on the manner in which she was notified of the change in the law and upon her not seeing the relevant email as it was delivered to her Junk Mail folder on her email. These are circumstances that are most unfortunate but I do not consider that they are special circumstances. DHS sent her notification of the change. The email containing that notification was delivered to her email and there is nothing unusual or uncommon about an email’s being delivered in a Junk Mail or Spam file or folder, rather than in another folder, in a particular recipient’s email service. It was accessible in that file or folder when Mrs Field checked it. There is nothing in the Department’s communications with Mrs Field to the effect that it would deliver its emails to a particular file or folder or that it would notify her by another means when it had sent her an email. In its letter of 30 March 2013, it said only that “Centrelink will email you with reminders and important information.” The letter in which DHS said that it would send her an email or SMS telling her when there was a new online letter available to view was dated 23 March 2015. That was quite separate from Centrelink’s electronic messaging service to which Mrs Field subscribed in 2013 and at the relevant time in 2014. In summary, I am satisfied that the circumstances in which Mrs Field came to lodge her claim for FTB too late are not unusual or uncommon and so are not special. She overlooked the notification. The ramifications of her doing so are significant for her in a financial sense but that does not put her in any position from others who have failed to make an effective claim and who would otherwise be entitled to receive FTB.
DECISION
For the reasons I have given, I set aside the decision of the SSAT dated 26 March 2015. In its place, I substitute a decision affirming the decision made by a delegate of the Secretary on 10 September 2014 and affirmed by an ARO on 4 February 2015.
I certify that the thirty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: …[sgd].....................................................
Associate
Date of Hearing 9 November 2015
Date of Decision 25 November 2015
Solicitor for the Applicant Mr Tim Noonan
Program Litigation and Review Branch, Department of Human Services
Self-represented Respondent Mrs Emily Field
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