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

This matter concerned an application for Family Tax Benefit (FTB) top-up payments for the 2018-19 income year. The applicant, Ms Lo Presti, sought to notify the Secretary of the Department of Social Services that she was not required to lodge an income tax return for that year. The dispute arose because this notification was provided on 27 May 2021, which was after the statutory deadline of 30 June 2020, as stipulated by section 32J of the relevant legislation. The applicant contended that she had not received correspondence from the agency reminding her of this deadline and that, even if she had, she would not have received it in time due to her extended stay in Melbourne caring for family members following a death and a stroke.

The primary legal issue before the Tribunal was whether the applicant was eligible for an extension of time to notify the Secretary that she was not required to lodge a tax return, by demonstrating "special circumstances" that prevented her from meeting the original deadline. This required the Tribunal to consider the interpretation of "special circumstances" as outlined in case law and to assess whether the applicant's personal situation met this threshold. A secondary issue involved the applicant's claim that she did not receive the agency's notification, and whether the agency had an obligation to proactively inform recipients of changes in the law.

The Tribunal acknowledged that ignorance of the law is generally not an excuse for non-compliance and that government departments are not legally obliged to advise individuals of changes in legislation that may adversely affect them. While accepting that the applicant was in Melbourne due to unforeseen family emergencies and was managing competing demands, the Tribunal found that these circumstances, while unfortunate, did not meet the threshold of "special circumstances" as defined by case law. The Tribunal noted that the applicant had received FTB top-up payments in previous years and that her usual practice was to contact Centrelink, but this did not excuse her failure to comply with the statutory notification requirements. The Tribunal concluded that the applicant had not demonstrated that these circumstances were unusual, uncommon, or exceptional to the extent required to justify an extension of time.

Consequently, the Tribunal affirmed the reviewable decision dated 8 October 2021, finding that the applicant was not eligible for the FTB top-up payment for the 2018-19 income year due to her failure to meet the notification requirements within the prescribed timeframe and the absence of special circumstances justifying an extension.