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

[2016] AATA 541

Germain and Secretary, Department of Social Services (Social services second review) [2016] AATA 541 (28 July 2016)

Division	GENERAL DIVISION
File Number	2016/1378
Re	Kevin Germain
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member D K Grigg
Date	28 July 2016
Place	Brisbane

The decision under review is affirmed.

.............................[sgd].............................

Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – family tax benefit –– applicant and his wife failed to lodge application for family tax benefit for 2013-2014 financial year by due date – no “special circumstances” which prevented this occurring – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999
Acts Interpretation Act 1901 – s 29(1)

Social Security Act 1991 – s 1237AAD

CASES

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

Barnard and Secretary, Department of Social Services (Social services second review) [2016] AATA 436

Beadle and Director- General of Social Security (1984) 6 ALD 1

Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531

Brian Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Groth and Secretary Department of Social Security (1995) FCA 1708

Hunnibell and Secretary, Department and Community Services [2004] AATA 992

Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451

Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084

Papps and Secretary, Department of Family and Community Services [2005] AATA 660
Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443

Scott v Secretary, Department of Social Security [1999] FCA 1774

Scott and Another v Secretary, Department of Social Security [2000] FCA 1241
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639

REASONS FOR DECISION

Member D K Grigg

28 July 2016

INTRODUCTION

1. On 13 July 2015 Mr Kevin Germain applied for a lump sum family tax benefit (“FTB”) for the 2013-2014 financial year.[1]

   [1]           Exhibit 1, T Documents, T 12, pages 94-151.

2. The application was rejected by the Department of Human Services (Centrelink) because the application had been made out of time. Centrelink refused to grant an extension of time.[2]

   [2]           Exhibit 1, T Documents, T 13, pages 152-153.

3. Mr Germain argues that despite lodging his application out of time special circumstances exist such that an extension of time to do so should have been granted.

4. For the reasons set out below I have affirmed the decision under review. No special circumstances exist such that the time for the lodgement of his FTB application should be extended.

Claim History

1. Mr Germain provided a statutory declaration declaring that he had attempted to access the Centrelink website on 28 June 2015 to complete an online application for FTB but it was unavailable. He contacted Centrelink on 2 July 2015 to inform them of the issues with the online application and was provided with a paper version of the application form, which he subsequently completed and lodged after 30 June 2015.[3]

   [3]           Exhibit 1, T Documents, T 11, page 93, Statutory Declaration of Mr Kevin Germain dated 6 July 2015.

2. Mr Germain sought a review of Centrelink’s original decision by an Authorised Review Officer (“ARO”). The appeal to the ARO was unsuccessful on the grounds that no “special circumstances” existed to extend the lodgement period.[4]

   [4]           Exhibit 1, T Documents, T14, pages 154-158, Authorised Review Officer’s letter and decision dated 21 October,

   2015.

3. Mr Germain then lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[5] The SSCSD rejected Mr Germain’s claim and affirmed the ARO’s decision on 4 February 2016.[6]

   [5]           Exhibit 1, T Documents, T16, pages 164-166, Application for Review dated 5 January, 2016.

   [6]           Exhibit 1, T Documents, T2, pages 9-11, SSCSD’s Decision and Reasons for Decision dated 4 February, 2016.

4. Mr Germain has sought a review of the SSCSD’s decision by this Tribunal.

ISSUES FOR DETERMINATION

1. In order to decide whether a FTB can be paid to Mr Germain for the 2013-2014 financial year I have to determine whether “special circumstances” exist such that the time for the lodgement of the FTB application should be extended.

LEGISLATIVE REQUIREMENTS

1. Pursuant to the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the “Act”) a valid claim for FTB must be made in accordance with the Act
   (s 5(1)).

2. If a claim is not effective, it is taken not to have been made: s 13(1).

3. Relevantly here, section 10(2)(b) of the Act provides that a claim for FTB for a past period is only effective if the claim is made within:

   (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.

MR GERMAIN’S CLAIM WAS NOT MADE IN TIME: section 10(2)(b)(i)

1. Mr Germain’s claim for FTB was not made within the first income year (that is, between 1 July 2014 and 30 June 2015) after the relevant income year, the 2013-2014 income year.

2. Therefore, it is necessary to consider whether there are any “special circumstances that prevented” Mr Germain from making the claim before the end of 30 June 2015.

ARE THERE SPECIAL CIRCUMSTANCES THAT PREVENTED MR GERMAIN FROM MAKING THE CLAIM BEFORE THE END OF 30 JUNE 2015 FOR THE PURPOSES OF SECTION 10(2)(b)?

What does “special circumstances” mean?

1. The Act does not define what constitutes “special circumstances”.

2. There has been considerable judicial consideration of the phrase in the context of other social security legislation, for example:

   ·     “Special” denotes something different from the usual or ordinary: Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 at 545 per Kiefel J.

   ·     French J (as he then was was) said in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 162:

   The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion…It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.

   ·     The Full Federal Court in Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443 at 450 held:

   Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.

3. Jacobson J in Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639 explained the effect of the authorities as follows:

   [51] ...the phrase “special circumstances”, although lacking in precision, is sufficiently understood as including events or things that render the operation of the statu[t]e in a particular case as unfair, unintended or unjust. What is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists. Moreover, the circumstances of the case are not confined to matters that are external to the operation of the statutory scheme: see Smith per von Doussa J at 60, 61–62; Groth per Kiefel J at 545, Kertland v Secretary, Dept of Family and Community Services (1999) 95 FCR 64 per Merkel J at 71, 73; Kirkbright v Secretary, Dept of Family and Community Services (2000) 106 FCR 281 per Mansfield J at [22], [26]–[27] and [31]–[32]; see also Secretary to the Department of Family and Community Services v Allan (2001) 116 FCR 1 per Heerey J at [17].

   (my emphasis)

4. The AAT has also considered the phrase and held that the interpretation in Beadle and Director-General of Social Security (1984) 6 ALD 1 at [12] (that the circumstances must be unusual, uncommon or exceptional), applies to the Act.[7]

   [7]           See Hunnibell and Secretary, Department and Community Services [2004] AATA 992 at [19]; Papps and

   Secretary, Department of Family and Community Services [2005] AATA 660 at [37].

5. In summary the circumstances relied upon to be “special” must be unusual, different, uncommon or exceptional.[8]

   [8]           The core requirement for “special reasons” is that there be something “unusual or different”: French J in Boscolo v

   Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at [18]; Barker J in Kazmierczak

   v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 at

   [37].

6. The Respondent referred me to extracts from the Guide to Social Security Law, the Family Assistance Guide (“the Guide”) which is used by the Department. The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[9]

   [9]           Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.

Do special circumstances exist?

1. On 14 February 2014 Centrelink wrote to Mr Germain of the legislative changes to family assistance payments informing him that he now had only one year, instead of two years, to submit a claim.[10] These changes were also published on the Department of Human Services website.[11]

   [10]         Exhibit 1, T Documents, T8, page 87.

   [11]         Exhibit 1, T Documents, T6, page 81.

2. Mr Germain told the Tribunal that he knew that his FTB claim had to be lodged by 30 June 2015. However, he believed that he had to have lodged his and his wife’s tax returns and received a notice of assessment (“NOA”) from the Australian Taxation Office (“ATO”) before the FTB claim could be lodged.

3. The relevant tax returns for the 2013-2014 period were recorded as lodged at the ATO on 22 June 2015.[12]

   [12]         Exhibit 1, T Documents, T17, page 167-172.

4. On 23 June 2015 Mr Germain says he went online to complete the claim form and read Centrelink’s explanatory notes.

5. The wording of the claim form notes relied upon by Mr Germain are:[13]

   The claim can be paid after you….have lodged a tax return and had your income details confirmed with the Australian Taxation office. To be paid Family Tax Benefit you must complete and lodge your Family Tax benefit claim and lodge your tax return(s)…

   You need to tell us if there are special circumstances that prevent you from lodging a claim, please call us on 136 150 to discuss.

   [13]         Exhibit 1, T Documents, T1, page 8, Centrelink Claim form notes.

6. Mr Germain says he interpreted this as meaning he had to have the NOA before he could complete the FTB claim form and lodge it with Centrelink.[14]

   [14]         See also Exhibit 1, T Documents, T1, pages 1-8, Mr Germain’s Application for Review dated 14 March 2016.

7. Despite Mr Germain’s interpretation of the necessary pre-lodgement requirements, on Sunday, 28 June 2015, not having received his NOA, Mr Germain, aware that the deadline of 30 June 2015 was approaching (and knowing that the NOA would arrive shortly), went online to complete the FTB claim form. Unfortunately for Mr Germain, Centrelink’s online system was “down” and he could not access or lodge the claim form online. Mr Germain says the failure of the Centrelink online system prevented him from lodging the claim. As a result of his being unable to access the online system Mr Germain says he then followed Centrelink’s protocols and on 29 June 2015 and 30 June 2015 dialled the telephone number set out in the claim form notes but was unable to get through.[15]

   [15]         Exhibit 1, T Documents, T1, page 8, Centrelink Claim form notes.

8. It is not in dispute that the Centrelink online system was not available to Mr Germain on Sunday, 28 June 2015. At the hearing before me the Respondent was unable to confirm whether the online system was working on 29 June 2015 and 30 June 2015. However, Mr Germain said he did not attempt to access the system on those days. Mr Germain said work commitments prevented him from doing so.

9. Mr Germain acknowledged that Centrelink was accessible by telephone and via its physical locations which are open 6 days per week until 8.00pm. Mr Germain, or his wife, could have attended a Centrelink office in person to lodge his claim within the requisite time period, however neither of them did so.

10. On 3 July 2015 Mr Germain says he revisited the online system however the relevant claim form had now been removed. He telephoned Centrelink and was able to speak to someone who agreed to mail a claim form to him. The letter from Centrelink enclosing the claim form provided that it had to be returned by 24 July 2015.[16]

    [16]         Exhibit 1, T Documents, T10, page 92, Letter from Centrelink to Mr Germain enclosing 2013-2014 Family Tax

    Benefit Claim Form, dated 3 July 2015.

11. Mr Germain lodged the claim form on 13 July 2015.

12. Before me Mr Germain acknowledged that he had had 12 months to lodge his claim and could have done so any time after 30 June 2014. Even though the FTB claim form could not be lodged until the tax returns were lodged, Mr Germain still had 8 days from the date of lodgement of the tax returns to 30 June 2015 within which to do so. Mr Germain also acknowledged that he could have tried to have his tax returns prepared a little earlier.

13. However, whilst the FTB cannot be determined until a tax return has been lodged, the FTB claim form can still be lodged in the meantime. A tax return need only be lodged within the 12 months following the income year in which they received a payment.

14. I note the wording of the claim form notes also provides:[17]

    You…must lodge a tax return and have your income details confirmed with the Australian Taxation office…If you do not…any Family Tax Benefit you have received will become a debt and will have to be paid back.

    [17]         Exhibit 1, T Documents, T1, page 8, Centrelink Claim form notes.

15. I note that the Claim form lodged by Mr Germain provides that in order to claim FTB that:

    ·it must be lodged by 30 June 2015

    ·if special circumstances exist which prevent the lodging of the claim to call Centrelink

    ·if you are unable to submit the form online or by post you can provide them in person to one of Centrelink’s service centres

    ·“we cannot assess your Family Tax Benefit until your taxable income details are confirmed by the Australian Tax Office”.

16. The Claim form then goes on to ask:

    ·if a tax return has been lodged, to which Mr Germain ticked “yes” (“No” was an option)

    ·if a Notice of Assessment has been received, to which Mr Germain wrote “self-assessed”.

    ·that the claimant confirm that he understands that “the Australian Government Department of Human Services may work out my lump sum payment based on my and my partner’s estimated income and that if the actual annual family income is different any overpayment will need to be paid back”. Mr Germain and his wife signed the form indicating they had understood.[18]

    [18]         Exhibit 1, T Documents, T12, at page 151, Claim form, dated 13 July 2015.

17. The Claim form clearly contemplates the lodgement of a FTB claim prior to the lodgement of a tax return or receipt of a notice of assessment. The Guide also provides that “a customer is not required to have lodged their tax return before lodging the lump sum claim”.[19] There is no legislative requirement that a NOA from the ATO is required before a claim for FTB can be lodged.

    [19]         Exhibit 1, T Documents, T4, page 45, Extracts from Guide to Social Security Law.

18. Mr Germain acknowledged that the form contemplated the lodgement of a FTB claim prior to the receipt of a notice of assessment, however he says he did not read this part of the claim form until after 30 June 2015.

19. The Guide provides examples of reasons which would not generally meet special circumstances criteria including:[20]

    ·The customer did not know about the change in claim lodgement periods

    ·Customer had intermittent internet availability

    [20]         Exhibit 1, T Documents, T4, page 45, Extracts from Guide to Social Security Law.

20. Mr Germain knew when the claim had to be lodged. He had over a week from the lodgement of relevant tax returns to notify Centrelink that he may not receive the NOAs in time to lodge the FTB claim. If he had done so he would have been informed that receipt of a NOA was not required. If he had read the claim form before 30 June 2015 he also would have realised that this was not a requirement.

21. He acted on a misapprehension of what was required and sought no guidance within an ample time of the deadline for lodging the FTB claim. However, ignorance of the legal requirements is not a special circumstance. “Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment”.[21]

    [21]         See Brian Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

22. Mr Germain’s only other reason for failing to lodge the claim form in time was that he and his wife had work commitments. Busy work commitments and the normal vicissitudes of life are not “uncommon”, “out of the ordinary”, “exceptional” circumstances. They are not “special circumstances” for the purposes of the Act.

CONCLUSION

1. Mr Germain’s appeal fails. No special circumstances exist such that the time for the lodgement of his FTB application should be extended.

2. The decision under review is affirmed.

I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.................[sgd].......................................

Associate

Dated 28 July 2016

Date of hearing	29 June 2016
Applicant	(self-represented) Kevin “Chris” Germain - In person
Advocate for the Respondent	Nicholas Warren
Solicitors for the Respondent	Department of Human Services – FOI and Litigation Team

[2010] AATA 115 at [17]; Biddlecombe and Secretary, Department of Families, Housing, Community

Services and Indigenous Affairs [2010] AATA 451; Barnard and Secretary, Department of Social Services [2016] AATA 436 at [47]; Scott v Secretary, Department of Social Security [1999] FCA 1774 and on appeal Scott and Another v Secretary, Department of Social Security [2000] FCA 1241.