Mesecke; Secretary, Department of Social Services and (Social services second review)
[2019] AATA 4249
•3 October 2019
Mesecke; Secretary, Department of Social Services and (Social services second review) [2019] AATA 4249 (3 October 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1605
Re:Secretary, Department of Social Services
APPLICANT
AndDana Mesecke
RESPONDENT
DECISION
Tribunal: Dr N A Manetta, Senior Member
Date of oral reasons: 3 October 2019
Date of written reasons: 18 October 2019
Place: Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Dr N A Manetta, Senior Member
Catchwords
SOCIAL SECURITY – Payments – Family Tax Benefit – Application for Family Tax Benefit made outside claim period – Whether an extension of the claim period can be granted – Whether “special circumstances” prevented the Respondent from making a claim for Family Tax Benefit within the claim period – Meaning of “prevented” – Found that the totality of Respondent’s circumstances amounted to “special circumstances” – Found that “special circumstances” prevented the Respondent from lodging claim for Family Tax Benefit in claim period – Decision under review affirmed.
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999
Cases
Bisceglie and Secretary, Department of Social Services [2016] AATA 294
Secondary Materials
Nil
REASONS FOR DECISION
Dr N A Manetta, Senior Member
18 October 2019
At the conclusion of the hearing of this matter, I delivered my decision and gave oral reasons for my decision. The Applicant requested written reasons.
I have reviewed the transcript of my reasons and made minor amendments to it. I formally adopt it as a written statement of my reasons in answer to the Applicant’s request. I attach a copy of the transcript as amended.
I certify that the following forty-four (44) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member.
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Legal and Administrative Assistant
Date of hearing: 1 October 2019
Applicant’s Representative: Mr Morris, Department of Human Services Respondent: In person ORAL DECISION OF SENIOR MEMBER MANETTA
This is an application by the Secretary, Department of Social Services seeking a review of a Level 1 decision of this Tribunal. The respondent to the proceedings is Ms Dana Mesecke. The Level 1 Tribunal set aside earlier decisions taken in the Secretary’s Department refusing Ms Mesecke’s late claim for family tax benefit, or FTB, in respect of the 2015/2016 income year.
The Secretary’s officers found there were no “special circumstances” that “prevented” Ms Mesecke from lodging the claim form in time. The claim form was lodged in August 2017 after the statutory deadline of 30 June 2017 had passed. The Level 1 Tribunal overturned these decisions and found there were “special circumstances” that “prevented” Ms Mesecke from lodging her application in time. The Tribunal extended the time for lodgement. The Secretary has applied to this Tribunal, Level 2, seeking a review of the Level 1 decision and the reinstatement of the earlier decisions taken in her Department.
At the hearing before me, Mr Morris represented the Secretary; Ms Mesecke represented herself. Hearing the matter afresh on the evidence before me, I must decide whether special circumstances prevented Ms Mesecke from making her claim for FTB in respect of the 2015/16 income year by 30 June 2017.
There was no argument put to me that I should not allow a period of time to Ms Mesecke that coincided with her lodging date in August 2017 if I found that special circumstances had prevented her from making her claim by 30 June 2017. Accordingly, I need only consider the question of whether any special circumstances were present which prevented Ms Mesecke from filing a timely claim. I further note that I need not find error in the Secretary’s officers’ decisions or in the Level 1 decision; rather, I must reach the preferable decision on the merits, having regard to the evidence adduced before me.
I have decided to affirm the decision under review. I now set out the salient facts and the reasons for the conclusion I have just stated.
Ms Mesecke was the only witness at the hearing. Her evidence was largely accepted by the Secretary. Ms Mesecke is now 51 years of age. She married in 1998 and has two children, now aged 17 and 14. Her husband, Mr Mesecke, works full-time. Ms Mesecke works part-time, that is three days a week from 8.30 am to 5 pm. She works as a medical receptionist for Dr Jones & Partners, the radiology practice. Her previous work has included positions with National Pharmacies and Ansett Airlines.
Ms Mesecke has received FTB since the birth of her children. She has chosen to claim it as a lump sum after the close of the income year rather than claiming instalments during the course of the year. She said she began this practice because it was more convenient to reconcile at the end of the income year any odd income payments she might receive during the course of the year from Ansett as part of her severance package.
She gave evidence that her understanding is that FTB had always been claimable up to two years after the end of the relevant income year. Her understanding of the law was correct until the 2012/13 income year. Mr and Ms Mesecke have an accountant who prepares their income tax returns, someone Mr Mesecke has known since his school days. He or she does not prepare Ms Mesecke’s FTB claims, however.
By a letter dated 12 February 2014, Centrelink advised Ms Mesecke that from the 2012/13 financial year onwards, she would have one year instead of two years in which to submit a lump sum claim for FTB. This meant her FTB claim for the 2012/13 year was due by 30 June 2014, for the 2013/14 year the form was due by 30 June 2015 and for the 2014/15 year the FTB claim form was due by 30 June 2016. For the year in question before this Tribunal (that is, the 2015/16 year), the FTB claim form was due by 30 June 2017.
Ms Mesecke gave evidence, which I accept, that she cannot now recall whether she ever received or read this letter. It emerged in the course of the hearing that Ms Mesecke was not denied FTB for any of the 2012/13, 2013/14 or 2014/15 income years. I infer from this fact that Ms Mesecke must have lodged her claim in good time (that is, by 30 June of the year following each of these years).
Turning now to the 2015/16 income year, I note that Ms Mesecke tried to lodge her claim form online on 8 August 2017. Her attempt failed because she ought to have lodged the claim by 30 June 2017 and the computer programme did not evidently permit her to lodge her claim late. She contacted Centrelink by phone and arranged to file a hard copy claim on 17 August 2017. This form was received but the claim was declined because it was late.
Ms Mesecke gave evidence, which I accept, that she had no particular system in place to ensure she claimed FTB in a timely way. Ms Mesecke also gave evidence, which I accept, that it was important that she should know her taxable income, as assessed by the ATO, before making her claim. She received that advice on 2 November 2016. In answer to a question I put to her, Ms Mesecke said she was not prompted to file her FTB claim upon receiving the ATO notice in November 2016, nor had the receipt of that notice prompted her to lodge claims in previous years. She was unable to say what had prompted her to make FTB claims in the past but I note that Ms Mesecke had managed successfully to make timely FTB claims in respect of the preceding three financial years.
When exactly these claims were made was not in evidence before me but, as I say, Ms Mesecke had managed to lodge a timely claim in respect of the preceding three financial years (that is, in the course of the following income year). She gave evidence to the Tribunal that FTB was of importance to her family. It amounted to about $12,000 in the 2015/16 income year. There was a clear incentive, therefore, for her to make the claim earlier rather than later but she had no particular system in place at home for making it.
Ms Mesecke accepted that she had sufficient information from 2 November 2016 onwards to file her FTB claim form. By law she had until 30 June 2017 to file her claim form but, as I say, she did not do so. In her correspondence with the Department of Human Services (T Documents, p.79), Ms Mesecke wrote that she believed she had two years in which to make her claim.
I now turn to describe Ms Mesecke’s circumstances from 2 November 2016 to 30 June 2017. Ms Mesecke has a number of medical conditions. She suffers, and has suffered, from regular fatigue, including in the period from November 2016 to June 2017. Her mother died from bowel cancer many years ago and after her own bowel operation 21 years ago (when a large part of her bowel was removed), Ms Mesecke consulted a psychiatrist. That was in 2005. From 2006 she has had to take antidepressants. She still takes prescription antidepressants. Ms Mesecke also suffers from fibromyalgia and has done so for some time. It flares up from time to time, especially when she is under pressure. She also has what is called “restless legs syndrome”.
During this eight-month period (that is, the period from November 2016 to July 2017), Ms Mesecke was rostered to work among three, and subsequently four, different Dr Jones & Partners clinics. She works full days on Mondays, Wednesdays and Fridays and has arranged specifically for these days so that each work day is followed immediately by a day off, which she uses, when she can, for rest and to meet her other responsibilities. She has had to take time off periodically from work. Ms Mesecke has, of course, parental responsibilities in respect of her two teenage children. She has spousal responsibilities as well.
One of her daughters suffers from anxiety. The daughter presented in November 2016 with worrying hyperventilation symptoms. The daughter had to bend over and hold her head between her knees, Ms Mesecke said. The child had to undertake a medical procedure, namely an oesophageal endoscopy on 21 November 2016. When this procedure showed no abnormalities, the symptoms were attributed to the daughter’s own anxiety condition.
Her other daughter required an ultrasound on her right shoulder, which was performed on 19 November 2016. In May 2017 one of her daughters injured her foot, her ankle, and required X-rays. Her husband fell in June 2017 and he, too, required treatment and X-rays.
The eight-month period contained, therefore, a number of distracting medical incidents.
A report (R1, p 14) from Ms Mesecke’s GP, Dr Rachootin shows Ms Mesecke attended her surgery on a number of occasions from November 2016 to June 2017 for various ailments. Her medical conditions are confirmed by Dr Rachootin to include Crohn’s disease, anxiety/depression, fibromyalgia and restless legs syndrome. It is noted by Dr Rachootin in another report (R1, p1) that Ms Mesecke “has often been struggling with fatigue, vagueness and feeling overwhelmed”.
Ms Mesecke’s treating gastroenterologist and consultant physician, Dr Heddle, said in his report (R1, p 18) as follows:
She has also had issues with depression and anxiety, which fluctuate with time, as does her issues with fibromyalgia. In addition she has been diagnosed with restless leg syndrome which sometimes impairs her sleep. When depression, anxiety or fibromyalgia is active she tends to become fatigued.
This is consistent with Dr Rachootin’s reports. Dr Rachootin specifically notes (R1, p1) that Ms Mesecke’s “medical issues may have contributed to her failure to lodge the appropriate forms on time”.
From November 2016 to June 2017 Ms Mesecke lived next door to her father, who had a fall in early 2017. According to Ms Mesecke, he seemed to need more assistance after the fall and she would check in on him more than once a day and more than she normally had in the past. She also tried to spend more time with him. She assisted him by doing his grocery shopping and helping him with cleaning chores.
Finally, I note that the Meseckes decided during the eight-month period to renovate their kitchen. The first kitchen renovation appointment occurred in March 2017 and the renovation began in the week of 13 March 2017. Ms Mesecke kept her diary and correspondence on the kitchen bench. She had to move the diary and correspondence when the kitchen fittings were pulled out. I note that during this period (namely, in April 2017) Ms Mesecke contacted her GP in respect of anxiety and heart palpitations. The renovation of the kitchen was not completed until late July 2017 at which time Ms Mesecke was able to resume using the kitchen area.
This date may be of some importance, in my opinion. When I asked her what had prompted her to apply for FTB in August 2017 Ms Mesecke initially said she did not have an explanation but she subsequently offered the explanation that resuming occupation of the kitchen where she usually kept her correspondence may have prompted her to attend to claiming FTB, although she believed she had until 30 June 2018 to make her claim.
Mr Morris correctly identified that if Ms Mesecke is to be eligible to receive FTB she needs to fall within section 10(2) of the A New Tax System (Family Assistance) (Administration) Act 1999. As Ms Mesecke did not lodge her claim by 30 June 2017, Mr Morris correctly pointed out that the Secretary had to allow a further period before the claim could be accepted. The exact wording of the relevant subsection is that “the claim must be made after the end of 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 the first income year” (that is, in this case, before 30 June 2017).
Mr Morris correctly identified that the jurisdictional threshold encapsulated in the clause commencing “if”, which enlivens the Secretary’s power to allow a further period, has two parts to it. First, the Secretary must identify the existence of special circumstances. Secondly, the Secretary must be satisfied that the special circumstances prevented the claimant from making the claim before, in this case, 30 June 2017.
So far as “special circumstances” are concerned, it is important in my opinion to bear in mind that whether special circumstances exist in a given case will depend on the exact facts of that case. The word “special” in this context is an ordinary word, not a legal term of art. Tribunal decisions and Federal Court decisions have made this clear. They point out that the meaning of “special” is simply “out of the ordinary” or “unusual”, but not necessarily “exceptional” (in the sense of unique). These decisions reflect the ordinary dictionary meaning.
In deciding whether special circumstances exist, I believe I must look to the totality of the claimant’s circumstances. I do not believe it is sufficient merely to look at each of Ms Mesecke’s circumstances one by one and ask whether it is special. Of course, a single circumstance may, in its own right, be special but on the assumption that no single circumstance is special, I must ask whether all the circumstances of the claimant taken together are special. If I did not do that, I would fail to have regard to any cumulative impact on Ms Mesecke of the circumstances, which may make her overall circumstances special. In this regard, I should perhaps say something about an extract from the decision of Bisceglie[1] and Secretary, Department of Social Services [2016] AATA 294, which was quoted from verbatim in the Secretary’s written statement of facts, issues and contentions (at [31]) as follows:
[27] Whilst the Tribunal acknowledges that the circumstances in which Ms Di Bisceglie found herself in the relevant period may have been challenging, including juggling running a business, dealing with “many problems” in managing the business (including the need to re-program a new cash register, delays in lodging the quarterly BASs to the ATO), working long hours, (i.e. 7 am to 4.30 pm, six days a week), dealing with associated paperwork, having family health issues (i.e. helping care for her father who was diagnosed with Alzheimer’s disease) and caring for small school-age children, the Tribunal finds that none of those circumstances are so “unusual” or “uncommon” so as to make them “out of the ordinary” or “special”.
[1] The applicant’s surname is given as “Bisceglie” not “Di Bisceglie”.
As I understood Mr Morris, he did not maintain that the last clause of this passage (reading “…the Tribunal finds that none of those circumstances are so ‘unusual’ or ‘uncommon’ so as to make them ‘out of the ordinary’ or ‘special’ ’’) should be taken to exclude the need of the Tribunal to consider the cumulative impact of circumstances to decide whether in aggregate they are special. I certainly proceed on the basis that I should look at the totality of Ms Mesecke’s circumstances. Here I do find that the circumstances when taken together were special.
I would refer, in particular, to the impact of Ms Mesecke’s own health problems, which resulted in regular fatigue, vagueness and a feeling of being overwhelmed. She had a job which she attended to but she had to have alternate days off to cope with it. She gave evidence that she regularly had to take days off. One of her daughters had a worrying incident in November and an ongoing anxiety state. She had the concern and worry of having to devote more time to her ageing father from early 2017 onwards. In addition, she had all the usual pressures and concerns of a parent and spouse. She was responsible for her share of running the household and raising two teenage children. In addition, there was significant disruptions to the daily routine of her household caused by a prolonged kitchen renovation, which led, as I understand her evidence, to the laundry being used as an improvised kitchen for some time.
I would reiterate here that Ms Mesecke herself often felt fatigued and overwhelmed as recorded in her GP’s report. My conclusion is that she was not coping well with the multiple demands in her life from November 2016 to July 2017. All in all I think Ms Mesecke’s circumstances, judged in their totality, including her limited ability to cope, were special.
The next question is whether the special circumstances “prevented” Ms Mesecke from making her claim by 30 June 2017. In my opinion they did. Mr Morris very fairly conceded that “prevented” in this context should not be taken to mean “having made physically impossible”. Otherwise, he submitted, only those lying in a coma would qualify. “Prevented” in this context means “having caused Ms Mesecke to be practically unable” to meet the deadline, he submitted. I think the word “prevented” means in this context “having so substantially impeded the claimant that the special circumstances caused the claimant to fail to make the claim in time”. In my opinion, it is important to bear in mind that Ms Mesecke had managed in respect of the preceding three financial years to lodge her claim in time.
I now return to the departmental letter of February 2014. There are three possibilities that arise in respect of the letter. First, it may have been that Ms Mesecke never did receive the letter of February 2014. I do not think there is any evidentiary base for concluding that Ms Mesecke did not receive the letter, and I take this hypothesis no further.
The second possibility is that Ms Mesecke did receive and read the letter and complied with the new one-year timeline for three years but reverted to the old timeline of two years in respect of the 2015/16 income year. I think that this is most unlikely. Had this been the case, I would have expected Ms Mesecke to have had her memory jogged when she was reminded by Centrelink that the time limit for lodging was one year, not two years, and had passed. Before the Tribunal she maintained, credibly, that she had no recollection of the change.
Even if that is, in fact, what happened, however, I would regard Ms Mesecke’s difficult circumstances as having caused her to forget the appropriate deadline. If a person is so affected by circumstances that the person wrongly reverts to a prior and correct understanding of a regulatory regime, and acts in accordance with that understanding but not in accordance with the regime as it actually is, he or she has been prevented, in my opinion, from complying with the regulatory regime by those circumstances. But, in any event, it is the third possibility that I find to be the most likely in the circumstances of this case.
The third hypothesis is that Ms Mesecke did receive the letter in her letterbox but did not open it. It went astray in a busy household and was never opened. It was fortuitous that Ms Mesecke filed her claims in good time in succeeding years. The financial incentive to get money earlier rather than later was clear enough. I think that when it came to the 2015/16 income year, with a filing deadline of 30 June 2017, Ms Mesecke did not attend to the filing of the FTB application before 30 June as she had done in previous years because of the multiple stressors in her life that persisted to late July 2017. In the back of her mind she wrongly had the thought that she had until 30 June 2018 to file the FTB application and the difficulties in her life caused her not to attend to the formality until after 30 June 2017, although in previous years she had attended to the task before the 30 June deadline of the next year.
I think Ms Mesecke was genuinely struggling with her life circumstances, which I have found to be special, in the course of 2016/17. When her life and household reverted to a more normal and stable basis in late July 2017, upon completion of the kitchen, Ms Mesecke did attend to the FTB claim form. Given Ms Mesecke’s own personal problems, which are considerable, I think the circumstances of her life taken in aggregate did prevent her from lodging the FTB claim form by 30 June 2017 (in the sense I indicated at [33] above).
I now turn to Mr Morris’ particular submissions. First, Mr Morris pointed out that Ms Mesecke was a medical receptionist whose role required a considerable degree of skill and organisation. He noted also that she had handled and supervised the kitchen renovation, which also required skill and organisation. These demonstrated her ongoing ability to manage tasks. This indicated that the real reason for Ms Mesecke not filing her claim by 30 June 2017 was that she was simply ignorant of the time limit.
This submission does not account for the fact that in respect of the preceding three income years, Ms Mesecke had arranged her affairs more or less efficiently so that the FTB claim form was submitted in a timely way. She did not know that she had only a one-year timeline but she nevertheless filed in time, albeit fortuitously. The 2015/16 year brought about a deviation in her practice and that deviation does reflect, in my opinion, the presence in Ms Mesecke’s life of the various stressors and pressures to which I have referred. Secondly, one must always be careful of inferring that because a person has done something it must have been done easily and within the capacities of that person. A person may not be coping at all well but still appear to be coping. On the evidence before me, Ms Mesecke was not coping very well at all. The medical evidence before me suggests she frequently felt fatigued and overwhelmed.
Mr Morris also submitted that if Ms Mesecke had known of the due date she would have complied with it. This showed, he submitted, that ignorance of the deadline was the critical factor. I accept that if someone had told Ms Mesecke, for example in the course of June 2017, that she had to get her FTB form in by 30 June 2017 or lose her entitlement altogether, she would have lodged the claim in time. This does not prove, however, in my opinion that simple ignorance of the time limit explains why Ms Mesecke did not file in time.
I refer again here to Ms Mesecke having filed in time, albeit fortuitously, in each of the preceding three years. Her failure to file in time in respect of the 2015/16 year was not caused by simple ignorance but by the stressors and pressures of the circumstances of her life. In other words, I agree that Ms Mesecke was not so overwhelmed that she would not have been able to react to a prompt from someone, had she received such a prompt, to file her claim by 30 June, but she nevertheless deviated from her practice of the preceding years because of the combined effect of the special circumstances of her life.
In all the circumstances, therefore, I have concluded that Ms Mesecke has demonstrated there were special circumstances in her life that prevented her from lodging her claim by 30 June 2017. As I said at the outset, there was no suggestion that an allowance of time for the filing of her claim to August 2017 would be inappropriate once this finding was made.
Accordingly, I shall affirm the decision under review.
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