Graham and Secretary, Department of Social Services (Social services second review)
[2019] AATA 2480
•2 August 2019
Graham and Secretary, Department of Social Services (Social services second review) [2019] AATA 2480 (2 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1837
Re:Shannon Graham
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:2 August 2019
Place:Sydney
The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – whether applicant entitled to family tax benefit top ups and supplement payments – whether applicant’s partner lodged income tax return by the statutory date – whether special circumstances prevented lodgement by statutory date – no special circumstances – decision affirmed
LEGISLATION
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 32C, 32J
Electronic Transactions Act 1999 (Cth)CASES
Andrews and Director-General of Social Security [1983] AATA 248
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle and the Director-General of Social Security (1984) 6 ALD 1
Secretary, Department of Social Services and Cannon [2015] AATA 1028
Secretary, Department of Social Services and Hollis [2015] AATA 41
Scott v Secretary, Department of Social Security [2000] FCA 1241
Wilson and Director-General of Social Services [1981] AATA 88SECONDARY MATERIALS
Family Assistance and Other Legislation Amendment Act 2013 (Cth)
REASONS FOR DECISION
Senior Member A Poljak
2 August 2019
Ms Shannon Graham, the applicant, was paid Family Tax Benefit (“FTB”) by fortnightly instalments during the 2012-2013 income year based on a combined adjustable income of $66,803 from 1 July 2012. The records of the Department of Human Services (“the Department”) show that during the 2012-2013 income year the applicant was partnered and had three dependent children.
On 28 March 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“SSCSD”) affirmed a decision made by an authorised review officer of the Department on 8 October 2015, not to pay the applicant FTB top ups and supplements for the 2012-2013 income year in the amount of $6,063.99. This is the decision under review in these proceedings.
Relevant legislative provisions
Section 32J of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“the Act”) applies to the applicant and is relevant to the 2012-2013 income year. It provides:
1This section applies to the first individual for a same‑rate benefit period if:
(a)the first individual; or
(b)any other individual whose adjusted taxable income is relevant in working out the first individual’s entitlement to, or rate of, family tax benefit for the same‑rate benefit period;
is not required to lodge an income tax return for the relevant income year.
2The relevant reconciliation time is whichever is the earlier of the following times:
(a)the time after the end of the relevant income year when the first individual notifies the Secretary of the amount of the first individual’s adjusted taxable income for the relevant income year, so long as that notification occurs before 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 first individual from making that notification before the end of that first income year;
(b)the time after the end of the relevant income year when the Secretary becomes satisfied that the first individual’s adjusted taxable income for the relevant income year can be worked out without receiving a notification from the first individual, so long as the Secretary becomes so satisfied before the end of the first income year after the relevant income year.
3The further period under subparagraph (2)(a)(ii) must end no later than the end of the second income year after the relevant income year.
Section 32C of the Act applies to the applicant’s partner and is relevant to the 2012-2013 income year. The Family Assistance and Other Legislation Amendment Act 2013 (Cth) amended section 32C of the Act and applies to this application. It provides:
1This section applies to the first individual for a same‑rate benefit period if:
(a)the first individual was a member of a couple throughout the same‑rate benefit period; and
(b)the first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year; and
(c)the first individual continues to be a member of the couple until the end of the latest of the following:
(i) the first income year after the relevant income year;
(ii) such further period (if any) as the Secretary allows for the first individual to lodge the return, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year;
(iii) such further period (if any) as the Secretary allows for the other member of the couple to lodge the return, if the Secretary is satisfied that there are special circumstances that prevented the other member from lodging the return before the end of that first income year.
2If only one member of the couple was required to lodge an income tax return for the relevant income year, the relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the member’s taxable income for the relevant income year, so long as the member’s income tax return for the relevant income year was lodged before the end of:
(a)the first income year after the relevant income year; or
(b)such further period as the Secretary allows for that member under subparagraph (1)(c)(ii) or (iii), as the case requires. [Emphasis added]
Background and consideration
On 20 March 2014, the Department issued the applicant with a notice that relevantly stated:
Family Tax Benefit- Important action required by 30 June 2014
You now only have one year instead of two years to lodge a tax return, or tell us if you and/or your partner are not required to lodge a tax return in order to receive your Family Tax Benefit entitlements.
…
To make sure you receive your Family Tax Benefit entitlement, you and your partner need to lodge a 2012-2013 tax return, or tell us if you and/or your partner are not required to lodge a tax return, by 30 June 2014.
According to the departmental records, the applicant notified the Department on 11 June 2015 that she was not required to lodge a tax return for the 2012-2013 income year. The respondent accepts that there is no requirement under section 32J for the applicant to meet the reconciliation conditions within a particular time. As such, the reconciliation time for the applicant is 11 June 2015.
On 27 August 2014, the applicant’s partner lodged his tax return for the 2012-2013 income year. This was after the end of the first income year after the relevant income year and before the end of the second income year after the relevant income year. The reconciliation time can only be extended to 27 August 2014, if I am satisfied that there were special circumstances that prevented the applicant’s partner from lodging his tax return before the end of that first income year, pursuant to s 32C(2)(b) of the Act.
Special circumstances are not defined in the Act however the Tribunal is provided some guidance by a number of Federal Court and Administrative Appeals Tribunal cases. In the decision of Beadle and the Director-General of Social Security (1984) 6 ALD 1 at [3] the Tribunal opined:
An expression such as “special circumstances” is, by its very nature, incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances of unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special [Emphasis added].
Justice Besanko explained in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33], what is required for there 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. [Emphasis added]
In order for the time to be extended to lodge the applicant’s partners tax return, I must be satisfied, firstly, that circumstances existed that were special and, secondly, that those special circumstances prevented the applicant and/or her partner from lodging his 2012-2013 tax return by 30 June 2014.
The applicant submits that she never received the letter dated 20 March 2014 which advised her that the time to lodge her and her partner’s tax returns changed from two years to one year. She says that at various stages she did not have access to the internet and has issues accessing the Centrelink portal. The applicant contends that despite being in contact with Centrelink numerous times since March 2014, she was not made aware of the changes.
Firstly, Departmental records show that the letter dated 20 March 2014 was sent to her nominated email account. On 24 March 2014, the Department sent a reminder email to the applicant stating in part that she had a new Centrelink letter available online. The emails are deemed to have been served pursuant to the Electronic Transactions Act 1999 (Cth). Despite the applicant’s claim that she had problems accessing the internet, the evidence shows that she booked flights online for her and her daughter 16 April 2014. She plainly had access to the internet at some stage on 16 April 2014; shortly after the email from Centrelink was dispatched to the applicant’s nominated email.
Secondly, as a matter of general principle, ignorance of the law is no excuse for a person’s failure to comply with it. The Department has no statutory obligation to provide her, or any of its clients, with information regarding changes to the law; Secretary, Department of Social Services and Hollis [2015] AATA 41; Secretary, Department of Social Services and Cannon [2015] AATA 1028.
In Scott v Secretary, Department of Social Security [2000] FCA 1241 the Full Court of the Federal Court held that Centrelink is not under an obligation either to advise or correct applicants in relation to potential benefits. The Tribunal in Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488 at [19] accepted the rule in Scott as authority for the point that:
…Centrelink is not responsible for informing any member of the public at large that he or she may be entitled to a social security payment, nor do they require Centrelink to correct errors made by a claimant.
On this basis I am satisfied that the applicant’s lack of awareness of the changes to the applicable law does not amount to special circumstances within the meaning of the Administration Act. I note that this is consistent with the approach previously taken by the Tribunal; see Wilson and Director-General of Social Services [1981] AATA 88; Andrews and Director-General of Social Security [1983] AATA 248.
Unfortunately the applicant was unable to provide any evidence from her partner about the delay in filing his income tax return. She submits that the special circumstances that may have impacted on his ability to lodge his return were the breakdown of their relationship and separation on 30 May 2014, business issues and that he was likely unable to access the records. The applicant said that in April 2013 she relocated from Queensland to New South Wales and that her partner arranged for their belongings to go into storage. The goods remained in storage until they were sent to Sydney in 2014. The applicant claims that all of their paperwork was in storage but also acknowledged that it was within their power and control as to when the belongings would be accessed or moved to Sydney. I am not persuaded that the circumstances described by the applicant are special in that they are not distinguishable from the usual case. Without further explanation from the applicant’s partner, it is also unclear how these factors prevented him from lodging his 2012-2013 tax return by 30 June 2014.
Decision
In the absence of evidence of special circumstances that prevented the applicant’s partner from lodging his individual tax return for the 2012-2013 income year by 30 June 2014, the discretion in paragraph 32C(2)(b) of the Act cannot apply. It follows that the applicant is not entitled to receive the FTB supplement and top up payments for the 2012-2013 income year.
The decision under review is affirmed.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 2 August 2019
Date(s) of hearing: 12 February 2019 Applicant: In person Solicitors for the Respondent: S Agnello, Department of Human Services
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