Hunnibell and Secretary, Department of Family and Community Services

[2004] AATA 992

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 992

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/731

GENERAL ADMINISTRATIVE DIVISION

Re:GRAHAM JOHN HUNNIBELL

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             22 September 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G. D. Friedman

Member

SOCIAL SECURITY - family tax benefit - application out of time - applicant unaware of time limit - whether special circumstances exist

A New Tax System (Family Assistance) Act 1999 

A New Tax System (Family Assistance) (Administration) Act 1999 s 5, 7, 22, 109A, 109D(1), 109D(2)

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

REASONS FOR DECISION

22 September 2004  G.D. Friedman, Member

1.      This is an application by Graham John Hunnibell (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 24 May 2004.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 26 March 2004 that there was no jurisdiction to review a decision of the Australian Taxation Office (ATO) dated 9 January 2002 to refuse an application for family tax benefit as the application was made outside the allowable time limit. 

2.      At the hearing on 20 September 2004 the applicant represented himself and Mr S. Meehan, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T20).

BACKGROUND

4.         The Family Court of Australia made a decision dated 14 December 2000 that the applicant’s daughter, Bianca Jade Rowe, born on 4 January 1994, reside with the applicant. In December 2001 the applicant lodged a claim for family tax benefit for the financial year 2000/2001 for his daughter Bianca.  On 9 January 2002 the Deputy Commissioner of Taxation issued a Notice of Assessment (the Notice) to the applicant, which advised him that part or all of his claim had not been paid because he was not eligible for family tax benefit.

5.        On 10 September 2002 the applicant lodged a claim for family tax benefit for 2001/2002.   On the claim form the applicant answered yes to question 20: Do you want to claim Family Tax Benefit for any period during the past financial year? i.e. 1 July 2000 to 30 June 2001.

6.        On 15 October 2002 Centrelink advised the applicant that his application for family tax benefit had been refused, and the letter referred to the 52-week time limit for seeking review of the decision.  On 14 November 2003 and 5 December 2003 the applicant contacted Centrelink regarding his claim for family tax benefit for 2001/2002.

7.        On 16 January 2004 the applicant contacted the Family Assistance Office and requested a review of the decision to refuse his claim for 2000/2001.  On 26 March 2004 an authorised review officer decided that no review was possible because the application for review was made more than 52 weeks after the decision to refuse the grant of family tax benefit.    

8.        On 6 April 2004 the applicant applied to the SSAT for review of the Centrelink decision. The SSAT having affirmed the decision, the applicant lodged an application with the Tribunal on 25 June 2004 for review of the SSAT decision.

9.        The issue before the Tribunal is whether the applicant is entitled to be paid family tax benefit for the financial year 2000/2001. 

EVIDENCE

10.      The applicant gave oral evidence that he lodged the claim for family tax benefit with his tax return following the decision by the Family Court that Bianca reside with him on full-time basis.  He said that he had provided his accountant with all relevant documentation including the Family Court orders.  He told the Tribunal that on receipt of the Notice refusing his claim he was not aware that there was a 52‑week time limit in which to seek review of the decision, as there was no reference in the Notice to such limits on his right to appeal.

11.      The applicant stated that he had no recollection of receiving the letter from Centrelink dated 15 October 2002, and said that at the time he had a number of personal and family issues that required his attention.  He said that for these reasons he did not raise the matter with Centrelink or his accountant.  He said that on 14 November 2003 and 5 December 2003 he contacted Centrelink regarding his family tax benefit claim for 2001/2002, but did not raise the 2000/2001 claim until he contacted the Family Assistance Office on 16 January 2004.

12.      Under cross-examination the applicant acknowledged that he was surprised that his claim was unsuccessful in view of the Family Court orders.  He agreed that the Notice contained advice that he should contact the Family Assistance Office for more information about his claim, and that the address was provided.  He conceded that he may not have read the Notice thoroughly.  He said that his appeal was late only because he was unaware of the 52-week time limit. 

13.      The applicant emphasised that he had incurred considerable costs in court proceedings and child care expenses, and that he should not be penalised for an honest mistake, particularly as the family tax benefit had been paid incorrectly to Bianca’s mother and the Notice was misleading.   The applicant stated that Bianca has since returned to her mother’s care.  He submitted that these issues, plus matters concerning his marriage in 2001 and the difficulties surrounding the question of Bianca’s residence should constitute special circumstances.   

CONSIDERATION OF THE ISSUES

14.      The legislation in respect of family tax benefit is A New Tax System (Family Assistance) Act 1999 and A New Tax System (Family Assistance)(Administration) Act 1999 (FAA Act). Section 5 and s 7 of the FAA Act provide that a person is entitled to family tax benefit only if a claim is made in the form and manner approved by the respondent. Section 22 of the FAA Act requires the respondent to give notice of a determination to a person making a claim for family tax benefit.

15. Section 109A of the FAA Act provides that a person affected by a decision regarding family tax benefit may initiate a review of a decision, and under s 109D(1) of the FAA Act an application for review must be made no later than 52 weeks after the person is notified of the decision (other than an excepted decision). Section 109D(2) provides an exception to the time limit:

109D.(2)  The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under subsection 109A(1) for review of a decision (other than an excepted decision) within the 52 weeks mentioned in subsection (1), permit a person to make the application after the end of that period and within such further period as the Secretary determines to be appropriate.

16.      In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

17. The Tribunal finds that the applicant lodged an application for family tax benefit for 2000/2001 in December 2001 through his income tax return in accordance with the FAA Act, and that on 9 January 2002 the respondent gave notice of determination in accordance with s 22 of the FAA Act.

18. The Tribunal accepts the submission from Mr Meehan, that under s 109D(1) of the FAA Act the applicant was required to lodge his request for review of the decision within 52 weeks of notification of the decision on 9 January 2002, and that the applicant lodged his application on 16 January 2004, which was outside the prescribed time limit.

19. In order for the decision-maker to use the discretion in s 109D(2) of the FAA Act to permit the applicant to make an application for review after the time limit, there must be special circumstances that prevented the applicant from making the application for review within the time limit. In Re Beadle and Director‑General of Social Security (1984) 6 ALD 1 the Tribunal held that special circumstances in the Social Security Act 1991 must be unusual, uncommon or exceptional.  The same interpretation applies to special circumstances in the FAA Act.

20.      The Tribunal accepts the applicant’s evidence that when he received the Notice in January 2002 he did not realise that a 52-week time limit applied to the lodgement of an application for review of the decision to refuse the grant of family tax benefit.  However, the Tribunal is satisfied that the Notice contained adequate information that would have assisted the applicant to make further enquiries and to lodge his appeal with the prescribed time limit. 

21.      The Tribunal takes into account the personal and family difficulties described by the applicant.  However, the Tribunal notes that the letter from Centrelink dated 15 October 2002 specified that the 52-week time limit applied in respect of family tax benefit for 2000/2001, and the applicant failed to act on the advice.  The Tribunal also notes that the applicant did not raise the issue with Centrelink on 14 November 2003 or 5 December 2003.  For these reasons the Tribunal concludes that the applicant had ample opportunity to seek assistance or to make inquiries about seeking review within the time limit, and there is no material before the Tribunal to suggest that the applicant was prevented from making his application on time.

22.      Therefore, the applicant’s circumstances do not constitute special circumstances.  The decision contained in the Notice is not an excepted decision for the purposes of the FAA Act.

23. Consequently, the Tribunal decides that the discretion in s 109D(2) to extend the time limit should not be exercised in the applicant’s favour, and the decision that family tax benefit was not payable to the applicant in respect of 2000/2001 is correct.

DECISION

24.      The Tribunal affirms the decision under review.

I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Lake

Clerk

Date of hearing:  20 September 2004

Date of decision:  22 September 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr S. Meehan, Centrelink