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

The applicant sought review of a decision by the Secretary of the Department of Social Services to affirm a determination that she was not entitled to a Family Tax Benefit (FTB) top-up for the 2015-2016 financial year. The Department's initial reconciliation indicated the applicant had received less FTB than she was entitled to, but payment of the full entitlement was withheld because her partner had not confirmed their income by the required date of 30 June 2017. The applicant contended that special circumstances excused the late confirmation of her partner's income. The matter proceeded through an Authorised Review Officer and the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) before reaching the General Division of the AAT for this review.

The primary legal issue before the Tribunal was whether the circumstances surrounding the late lodgement of the applicant's partner's tax return constituted "special circumstances" for the purposes of the A New Tax System (Family Assistance) Act 1999 (Cth) (the Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act). Specifically, the Tribunal had to determine if these circumstances permitted the exercise of the discretion under s 32D(1)(c)(ii) of the Act to disregard the FTB reconciliation conditions, thereby allowing the applicant to receive an increased reconciled amount of FTB based on her actual combined adjusted taxable income.

The Tribunal considered the evidence presented by the applicant and her partner regarding the reasons for the late lodgement of the partner's tax return. After hearing oral evidence and reviewing documentary evidence, the Tribunal concluded that the circumstances did not amount to special circumstances as contemplated by the legislation. Consequently, the Tribunal found itself unable to exercise the discretion provided by s 32D(1)(c)(ii) of the Act. Without the exercise of this discretion, the applicant could not satisfy the FTB reconciliation conditions for the relevant period.

The Tribunal affirmed the decision under review.