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

[2016] AATA 127

Lineham and Secretary, Department of Social Services (Social services second review) [2016] AATA 127 (3 March 2016)

Division	GENERAL DIVISION
File Number	2015/4846
Re	Christopher Lineham
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	3 March 2016
Place	Melbourne

The decision under review is affirmed.

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Dr Damien Cremean

SOCIAL SECURITY – Family tax benefit — Supplement and top up payments — tax return to be lodged on time — failure to do so — whether Applicant prevented by special circumstances — no special circumstances – decision affirmed

Legislation

A New Tax System (Family Assistance) (Administration) Act1999 (Cth)

sections 32D(2), 32D(3)

Cases

Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA25

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

REASONS FOR DECISION

Dr Damien Cremean

3 March 2016

1. The Applicant, Mr Christopher Lineham, seeks review of the decision of the Social Services & Child Support Division of this Tribunal made on 28 July 2015 to affirm the decision of  a Centrelink authorised review officer  (made on 10 June 2014) not to pay the Family Tax Benefit (FTB) supplement and top up for the 2012-13 income year.

2. The FTB supplement and top up are payable under A New Tax System (FamilyAssistance) (Administration) Act 1999 (Cth) (the Act) if the qualifying provisions of the Act are met.

3. As regards the due date for lodging a claim for the FTB supplement and top up the Act provides in sections 32D(2) and (3) as follows:

   (2)The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the partner’s taxable income for the relevant income year, so long as the partner’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 (if any) as the Secretary allows under subparagraph (1)(c)(ii).

   (3)The further period under subparagraph (1)(c)(ii) must end no later than the end of the second income year after the relevant income year.

4. At the hearing the Applicant gave affirmed evidence but called no witnesses.

5. Mr Tim Noonan, advocate for the Secretary, Department of Human Services (the Respondent) cross examined the Applicant and made submissions but called no witnesses either.

6. I am satisfied on the evidence that the Applicant failed to lodge a tax return by 30 June 2014.  There was no debate about this at the hearing.

7. The real issue, however, is whether there are special circumstances under the Act which overcome the lateness of his lodging of his tax return. He lodged it on 15 April 2015.

8. The expression special circumstances is not defined in the Act.  I am satisfied that I should however follow the ruling of the Tribunal in Re Beadle and Director-General of SocialSecurity (1984) 6 ALD 1 at [12] where it is said that:

   An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. 

   In Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 at [33] the court said:

   ... there must be something that distinguishes the case from the ordinary or usual case.

9. It is clear that the special circumstances must be such as to have prevented the lodging of a return.  The word prevented is not defined in the Act either.  I do not see that that word is confined to being physically prevented.  Being physically prevented is only one way in which a person may be prevented.

10. I am reasonably satisfied that there are no special circumstances in this case.

11. The Applicant Mr Lineham works as a panel beater in Whittlesea, Victoria.  He has one son (aged 19 years) and a step-daughter.  He and his wife are separated but not divorced and were for a time separated under the one roof.  They first separated when their son was only three years old.

12. The Applicant readily acknowledges that he failed to lodge his tax return for the year 2012-13 by 30 June 2014.  Nothing was said to him by anyone in the Australian Tax Office which could give him the impression that this was not the critical date or that another date would apply.

13. At the time when his return was due to be lodged Mr Lineham said he was suffering considerably.  Not only had he and his wife separated – upsetting in itself – but a close female friend of his had committed suicide.  That friend had been helping him with paperwork and related matters.

14. Before or even at the time when the tax return had to be lodged Mr Lineham said he found it hard even to get out of bed of a morning.  He was very sad and morose.  Doing his tax return was the last thing on his mind he said, to the extent that thoughts about such a matter simply did not enter his head.  On many occasions he contemplated suicide himself – perhaps by driving into a tree – and would have done so but for his son.

15. At the hearing, as he recounted details of his private life, it was obvious that Mr Lineham is still badly affected by events which have taken place.  He said he is less affected now than before.  Still, he was very emotional.

16. The evidence Mr Lineham gave confirmed that his life has indeed been one of hard work. Physically his work has been difficult — he showed me welding burns on both arms. It was also very difficult emotionally, especially when dealing with crashed vehicles which may have been involved in injurious or fatal incidents.  Customers have also at times placed unreasonable demands on him to get their work done.  He described how he has taken on the big or hard jobs in the panel shop.

17. Mr Lineham tendered a character reference at the hearing from Mr Lloyd Stevenson who has been a close friend for 30 years.  That reference speaks highly of him.  There was also a Statutory Declaration by Ms Lynette Bennetts who spoke of him in very positive terms.  His good character is not in issue from my perspective.

18. One thing I did not have at the hearing however was a medical or psychological report or certificate canvassing Mr Lineham’s health issues, including his psychological state, at the crucial time in June 2014.

19. Mr Lineham gave evidence that he has a mistrust of the medical profession after an incident when he was a young lad during or after surgery.  Therefore, he does not go to doctors.  The last one he went to was for a medical certificate about eight years ago.  He said he did not even know what a psychologist was or that a psychologist is different to a psychiatrist.

20. Without medical or psychological evidence I have nothing of an independent nature which can corroborate Mr Lineham’s claimed state of mind at the time when his tax return was due for lodging.

21. I am not in a position therefore to say whether, at that time, he was truly suffering from depression or not – as opposed to being merely sad or very upset.  The difference between the two is critical in my view.  Depression can be a very disabling condition but sadness – even great sadness – is not an uncommon everyday occurrence.

22. If I could be satisfied Mr Lineham was suffering depression as such which was clinically diagnosed at the time, I might readily enough be able to find special circumstances.  His depressed mental state could then be said possibly to have prevented him from lodging his return on time.

23. In the absence of independent evidence to that effect, however, I am not in a position to make any such finding.  The Tribunal is not equipped to make medical judgements of that kind in the absence of proper evidence.

24. There being no special circumstances, therefore, the decision under review must be affirmed.

25.     I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean

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

Associate

Dated 3 March 2016

Date of hearing	19 February 2016
Applicant	Christopher Lineham
Advocate for Respondent	Tim Noonan