Hooker and Secretary, Department of Social Services (Social services second review)
[2015] AATA 732
•21 September 2015
Hooker and Secretary, Department of Social Services (Social services second review) [2015] AATA 732 (21 September 2015)
Division
GENERAL DIVISION
File Number(s)
2015/3196
Re
Ashleigh Hooker
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 21 September 2015 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J F Toohey
CATCHWORDS – social security – family tax benefit – late claim – whether special circumstances prevented applicant from lodging claim within time – decision under review affirmed
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999 s 10(2)
A New Tax System (Family Assistance) Act 1999 s 13
Social Security Act 1999 ss 1184K, 1237AAD
Cases
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
Senior Member J F Toohey
Background
This matter concerns a claim by Ashleigh Hooker for family tax benefit (FTB) for the 2012/2013 income year. Ms Hooker lodged her claim with Centrelink on 14 July 2014.
Sub-section 10(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 concerns claims for payment of FTB for a past period. It provides:
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 (the relevant income year) but 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.
A claim that is not effective is taken not to have been made: s 13 of the A New Tax System (Family Assistance) Act 1999.
Ms Hooker seeks review of a decision dated 15 May 2015 by the Social Security Appeals Tribunal that she did not make an effective claim for FTB for the 2012/2013 income year and that she should not be allowed additional time to make her claim because there were no special circumstances that prevented her from doing so on time.
On 1 July 2015, the Social Security Appeals Tribunal merged with the Administrative Appeals Tribunal and is now the Social Services and Child Support Division of the Administrative Appeals Tribunal. Applications in the Social Services and Child Support Division are referred to as “AAT first review”. Ms Hooker’s present application is referred to as an application for “AAT second review”.
Ms Hooker’s circumstances
There is no dispute that, in order for her claim for FTB for the 2012/2013 income year to be effective, Ms Hooker had to make it by 30 June 2014. The question is whether the time for making her claim should be extended because there were special circumstances that prevented her from doing so.
Ms Hooker has provided written submissions, and spoke to the Tribunal with her partner, David Tucker, at a hearing on 16 September 2015. There is no dispute about the facts.
On 6 May 2014, approximately seven weeks before the deadline for lodging her FTB claim, Ms Hooker received a letter from Medicare concerning their daughter’s history of immunisations. According to Medicare’s records, their daughter had not had a Measles Mumps Rubella Meningococcal C hib immunisation on the due date meaning that she had a “delinquent immunisations status”. The effect of a “delinquent immunisations status” is that a person is not eligible to receive a particular component of FTB.
Ms Hooker was confident that Medicare had made a mistake. She was not sure whether the error lay with her general practitioner’s records or with Medicare’s. She assumed that Medicare would not amend its records solely on her assertion that their daughter’s immunisation was up-to-date so she made an appointment to see the nurse who had given their daughter the immunisation.
The nurse confirmed that Ms Hooker’s daughter had received the required immunisation and undertook to notify Medicare so it could amend its records. On 20 June 2014, the nurse telephoned Ms Hooker to confirm she had notified Medicare.
Ms Hooker had a similar experience with their older child, for different reasons, and says she knew that Medicare’s administrative error “rendered her ineligible to receive the FTB”. She says she did not lodge her FTB claim immediately because she expected Medicare would write or call to confirm that their daughter’s “delinquent immunisations status” had been corrected.
The Tribunal asked Ms Hooker why, when she knew she had to lodge her FTB claim by 30 June 2014, she did not contact Centrelink before 30 June 2014 to advise that she was waiting on confirmation from Medicare, or to ask what might happen if her claim was late. Ms Hooker was frank. She said there were a lot of things going on at the time that competed with the time she had for administrative tasks: she and Mr Tucker were worried about their finances and work, their son had just started school, and they had their infant daughter to care for.
On 4 July 2014, Ms Hooker tried to lodge an online claim for FTB. The online system would not accept her claim because it was four days late. On the next business day, 7 July 2014, she contacted Centrelink to ask what she should do. She was advised to download, print, complete and post the 2013/2014 claim form, amending it by blacking out the dates and writing 2012/2013. She was advised to include a letter explaining the delay. She was advised that, “in the likely event her claim was denied”, she could lodge an appeal. Ms Hooker followed these instructions and lodged a claim which was rejected as out of time.
Were Ms Hooker’s circumstances special?
In order for the time for making a claim to be extended, the Secretary (and so the Tribunal) must be satisfied, firstly, that circumstances existed that were special and, secondly, that those special circumstances prevented the claimant from making his or her claim within time.
The meaning of special circumstances for the purposes of social security law has been considered by the Tribunal and the courts on many occasions. It is an expression “by its very nature incapable of precise or exhaustive definition” and its meaning will depend on the context in which the circumstances occur. The circumstances need not be unique “but they must have a particular quality of unusualness that permits them to be described as special”: Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3; see also, for example, Groth v Secretary, Department of Social Security (1995) 40 ALD 541.
I accept that Ms Hooker’s circumstances were unusual. The error in Medicare’s records was not something that might be expected, and it is reasonable to assume that such errors are not the norm. Her circumstances were made more unusual by the fact that her older child could not be immunised on time when he was young because of illness and he too had a “delinquent immunisations status” at that time. She knew from that experience that the FTB claim would be rejected without the correct Medicare record. I also accept that, along the way, there were some delays in the Department’s responses to Ms Hooker and some of the advice she received was not altogether helpful.
That said, I have difficulty accepting that Ms Hooker’s circumstances were “special” because, at its heart, the reason she did not make a claim on time was the understandable distraction of concerns about finances and work, and caring for two young children. It is not surprising that she did not find time for administrative tasks such as lodging her claim for FTB.
Did special circumstances prevent Ms Hooker from making her claim on time?
There are a number of provisions in social security law concerning “special circumstances”. For example, a preclusion period following receipt of a lump sum compensation payment may be waived or waived if the Secretary thinks “it is appropriate to do so in the special circumstances of the case”: s 1184K of the Social Security Act 1999. Recovery of a debt may be waived “if there are special circumstances” that make it desirable to do so: s 1237AAD of the Social Security Act 1999.
In such cases, it is sufficient for the Tribunal to be satisfied that special circumstances exist. In the case of a late claim for FTB, the special circumstances must prevent a person from making a claim on time. That is a more stringent, two-part test.
Even if I accept that the circumstances of the incorrect “delinquent immunisations status” were special, I am not satisfied that they prevented Ms Hooker from making her claim before 30 June 2014.
The fact that there appeared to be an error in Medicare’s records did not prevent Ms Hooker from lodging a claim for FTB on time. It did not prevent her from contacting the Department to advise that she was waiting on confirmation from Medicare and that her claim for FTB might be late. Had she done so, it is reasonable to assume she would have been advised to make her claim and, if necessary, provide confirmation from Medicare later.
Ms Hooker was advised by the nurse on 20 June 2014 that she (the nurse) had notified Medicare of the error in its records. Ms Hooker had 10 days in which to contact the Department. I accept she did not do so because of the many other things she had to attend to at the time but that is not the same as being prevented from making her claim on time.
Conclusion
I have a good deal of sympathy for Ms Hooker and Mr Tucker. They were frank in giving their evidence. The delay in making their claim for FTB was minimal. Their financial loss as a result is considerable. However, the provisions in the legislation are strict.
For the reasons I have given, I am not satisfied, even if Ms Hooker’s circumstances were special, that they prevented her from making her claim by 30 June 2014.
I affirm the decision under review.
26. I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.
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AssociateDated 21 September 2015
Date(s) of hearing
16 September 2015
Representatives for the Applicant
Self-represented
Representatives for the Respondent Kate Martini, Government Lawyer
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