FJTH and Secretary, Department of Education (Social security second review)

[2025] ARTA 1866

FJTH and Secretary, Department of Education (Social security second review) [2025] ARTA 1866 (22 September 2025)

Applicant:FJTH

Respondent:  Secretary, Department of Education

Tribunal Number:                2024/2602

Tribunal:Senior Member J Walsh (second review)

Place:Brisbane

Date:22 September 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 22 September 2025 at 5:08pm

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision or reasons and replaced with generic information so as not to identify involved individuals as required by subsections 161(1B)–161(1C) of the A New Tax System (Family Assistance) (Administration) Act 1999

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Catchwords: FAMILY ASSISTANCE – child care subsidy – subsidy not paid for eight-week period - income tax returns not lodged by deadline – whether special circumstances prevented lodgement within time – Applicant’s case various factors prevented lodgement within time considered – finding no special circumstances prevented requirement being met within time – decision affirmed.

Legislation:

A New Tax System (Family Assistance) (Administration) Act 1999, ss 67CD, 103A and 103B
Acts Interpretation Act 1901, s 29
Electronic Transactions Act 1999, s 14A

Statement of Reasons

1. The Applicant was receiving child care subsidy (CCS) in respect of her eldest son’s attendance at daycare from April 2022. However, CCS was stopped on 10 July 2023 and then resumed from 4 September 2023. It ceased to be paid because the Applicant and her partner had not lodged their 2021/22 income tax returns by 30 June 2023; they were lodged on 1 September 2023. The Applicant seeks review of the decision not to pay CCS for the period 10 July to 3 September 2023.

Background

1. By notice dated 13 July 2023, the Applicant was informed that payments of CCS had ceased from 10 July 2023. On 19 July 2023, she contacted Centrelink and the cessation of CCS was discussed. She was advised that her 2021/22 tax returns had to be completed.

2. On 11 September 2023, the Applicant contacted Centrelink to discuss her family tax benefit (FTB) payments. She was informed an FTB top-up payment for 2021/22 would not be paid because of the late lodgement of the 2021/22 tax returns. The record of the discussion includes “Customer advised that they didn’t have the money to do the tax returns until just recently.” She was advised she could provide any evidence of special circumstances which prevented lodgement of the tax returns on time.

3. On 4 October 2023, the Applicant requested a review of the non-payment of CCS from 10 July to 3 September 2023. It was noted that she advised “they were unable to meet the reco requirements in time due to multiple circumstances.” This was a reference to CCS reconciliation conditions.

4. On 23 November 2023, an authorised review officer affirmed the decision not to pay CCS for the subject period. On 18 March 2024, the Administrative Appeals Tribunal (AAT) also affirmed this decision.

5. On 29 April 2024, the Applicant applied for further AAT review (second review). Her application indicated she had received notice of the first AAT decision on 25 March 2024; she requested an extension of time within which to bring her further AAT application and provided reasons for the delay. When asked for their attitude to the extension of time application, the Respondent Secretary notified the AAT that it considered the Applicant’s application on 29 April 2024 to be within time, allowing for service of the notice of AAT first review decision dated 25 March 2025 by post. It appears this view was accepted and the Applicant was advised by the AAT that her application had been accepted.

6. On 14 October 2024, the AAT was replaced by the Administrative Review Tribunal (ART). AAT applications for review not finalised before that date transitioned to the ART to be considered and finalised in a manner the ART considered efficient and fair: clause 24, Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024. As far as possible, such applications were to be continued under the ART legislation.

7. I conducted a hearing by telephone on 2 September 2025. I confirmed with the Applicant that she received notice of the AAT first review decision on 25 March 2025 by email, not by post. She then had 28 days to apply for further AAT review within time. It followed her application on 29 April 2024 was one week out of time. I explained I would have to determine whether to grant an extension of time before the substantive hearing could proceed. The Secretary did not oppose the extension application. In the circumstances, I granted the Applicant an extension of time and the hearing then proceeded.

Consideration

1. To continue to receive CCS from July 2023, the Secretary (and therefore the Tribunal on review) had to be satisfied that the Applicant remained entitled to CCS. This involved a consideration as to whether the criteria in section 67CD of the A New Tax System (Family Assistance) (Administration) Act 1999 (Act) were satisfied and, in particular, whether the Applicant met the “information requirements” in paragraph 67CD(10)(d). This involved the Applicant being required to meet the “CCS reconciliation conditions” in respect of the 2021/22 income year by the “first deadline” for that income year. Having regard to subsections 103A(1) and (2) of the Act, to meet the CCS reconciliations conditions, both the Applicant and her partner had to have their 2021/22 income tax assessments completed by the Commissioner of Taxation. In this respect, I note that the Secretary has proceeded on the basis that lodgement of 2021/22 tax returns, rather than ATO assessments for that year, are sufficient to comply with this requirement. Given my view of the matter, nothing material turns on this discrepancy. I will refer to this requirement generally as the “income tax requirement”.

2. The first deadline for compliance with the income tax requirement for the 2021/22 income year was 30 June 2023: see subsection 103B(1) of the Act. The Secretary (and therefore the Tribunal) has a discretion to allow a longer period, up to 30 June 2024, if satisfied that special circumstances prevented the Applicant and her partner meeting the income tax requirement by 30 June 2023: subsections 103B(2), (3) and (4). In this respect, I have to consider whether the Applicant’s circumstances, as well as her partner’s circumstances, were: (1) unusual, uncommon or outside the usual run of cases; and, if so (2) whether those circumstances prevented each of them meeting the income tax requirement by 30 June 2023.

3. The Applicant’s case is that a variety of circumstances, considered together, should be regarded as special circumstances which prevented her meeting the 2021/22 income tax requirement by 30 June 2023. As for her partner, he left all such administrative matters to her so that the outcome of a consideration of his circumstances should follow the outcome for her. However, at hearing, the Applicant accepted that the focus of her case concerned the circumstances which impacted her. Other than his reliance on her, she did not contend there were special circumstances which prevented her partner meeting the income tax requirement by 30 June 2023.

4. There were several factors affecting the Applicant during 2022/23. In particular, there was significant concern in the family about her mother’s unusual behaviour, functioning and mental state. She was ultimately diagnosed with schizophrenia in early 2023 after which appropriate treatment resulted in noticeable improvement to her mental state. Unfortunately, the Applicant then became very concerned that she might develop the same mental illness; her own mental health was affected as a result. I accept this was a difficult and distressing period for the Applicant.

5. The Applicant also had to look after her three young children and manage the household which involved a myriad different tasks and responsibilities. She has ADHD which can affect organisation, time management and task focus and prioritisation. Whilst undertaking family responsibilities is not unusual, I accept the Applicant’s ADHD condition added a layer of difficulty for her in this context. In addition, she was attempting to pursue her counselling studies in 2022/23; the evidence showed that she had sought and been granted three extensions in her coursework in the first half of 2023. In the result, I consider it fair to assess that the Applicant had a lot going on in her life in 2022/23. If necessary, I would have been prepared to find it was open to describe her circumstances as special in this context.

6. The Applicant was sent notices dated 29 November 2022 and 23 May 2023 informing her of the need to lodge her 2021/22 tax returns by 30 June 2023. She was also sent text messages on 23 May 2023, 6 June 2023 and 14 June 2023 advising of this requirement. The notices and text messages were correctly addressed. When asked about these communications, her position was twofold: (1) none of the communications warned about the consequences of failure to lodge by 30 June 2023; and (2) in any event, she had not received the notices or text messages. She had become aware of the income tax requirement by way of a task on the Centrelink app on her phone. However, again, there was no warning of the consequences of failure to lodge tax returns in time.

7. The Applicant accepted it was possible she had received the notices in the mail but failed to give them enough attention. She explained she had previously been aware of the need to lodge income tax returns by specified dates and had failed to do so, without any material consequences. She was adamant she had not received the text messages.  

8. Both the notices in November 2022 and May 2023 were described as given under section 158 of the Act. There are deeming provisions relating to such communications: see section 29 of the Acts Interpretation Act 1901. The effect here is that the notices are taken to have been served or given via the post, unless the contrary of delivery is proved. In this respect, evidence of non-receipt is not evidence of non-delivery and so insufficient to rebut the presumption of service by post. Section 14A of the Electronic Transactions Act 1999 is to similar effect in relation to receipt of the text messages referred to above.

9. In my view, there are two main impediments in finding for the Applicant in this case. Firstly, she gave clear evidence that, had she been aware of the consequences of failing to lodge their tax returns by 30 June 2023, she would have made sure they were finalised in time. I accept this evidence. In my assessment, this demonstrates that the various other factors the Applicant relied upon above did not prevent timely lodgement. She was capable of prioritising lodgement of the tax returns in time but did not do so because she did not appreciate the consequences of failing to do so. I do not consider it open to find special circumstances prevented her meeting the income tax requirement by 30 June 2023 in the face of this evidence. Secondly, I do not consider there were any special circumstances which prevented the Applicant’s partner meeting this requirement by 30 June 2023. The Applicant’s evidence was that, had he been aware of the requirement, he would have ensured she met it.

10. Accordingly, since I do not consider there were special circumstances which prevented the CCS reconciliation conditions being met by 30 June 2023, I am satisfied the decision not to pay CCS to the Applicant for the period 10 July 2023 to 3 September 2023 was correct.

Decision

1. The decision under review is affirmed.

Date of hearing:	2 September 2025
Date final submissions received:	2 September 2025
Applicant:	In person
Solicitors for the Respondent:	Ms T Balakisnan, Legal Services, Services Australia