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

[2016] AATA 118

Monteith and Secretary, Department of Social Services (Social services second review) [2016] AATA 118 (2 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/4087
Re	Julie Monteith
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean, Senior Member
Date	2 March 2016
Place	Melbourne

The decision under review is set aside.

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

Dr Damien Cremean

SOCIAL SECURITY –Family tax benefit—Child care benefit—claims to be lodged on time—failure to do so—whether Applicant prevented from lodging on time by ‘special circumstances’—special circumstances found--decision set aside

Legislation

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) sections 10 (2) 10(2A), 49J, 49J(2A)

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

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

REASONS FOR DECISION

Dr Damien Cremean

2 March 2016

1. The Applicant, Ms Julie Monteith, seeks review of the decision of the Social Services & Child Support Division of this Tribunal made on 9 July 2015 to affirm the decision of the Department of Human Services (made on 22 December 2014) not to pay the Family Tax Benefit (‘FTB”) lump sum for the 2011-12 and 2012-13 income years and the Child Care Benefit (“CCB”) for the 2012-13 income year.

2. Both FTB and CCB are payable under A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) (“the Act”) if the qualifying provisions of the Act are met in the case of each benefit .

3. As regards FTB the Act provides in sections 10 (2) and (2A) as follows:

   (2) A claim for payment of family tax benefit for a past period is not effective if:

   (b) the period does not 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

   (2A) The further period referred to in subparagraph (2) (b) (ii) must end no later than the end of the second income year after the relevant income year.

4. As regards CCB the Act provides in sections 49J(2) and (2A) as follows:

   (2) A past period claim is ineffective if:

   (b) the period does not fall wholly within one income year (the relevant income year) but the claim is made before the end of the relevant income year or 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 lodging the claim before the end of that first income year.

   (2A) The further period referred to in subparagraph (2) (b) (ii) must end no later than the end of the second income year after the relevant income year.

5. At the hearing the Applicant gave affirmed evidence by telephone but called no witnesses.

6. The Respondent cross examined the Applicant and made submissions but called no witnesses either.

7. I am satisfied on the evidence that the Applicant failed to lodge a claim for FBT and CCB by 30 June 2014 which was the applicable date for both. There was no serious debate about this at the hearing

8. The real issue however is whether in respect of both FTB and CCB there are special circumstances under the Act which overcome the lateness of the Applicant’s claim.

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

10. It is clear also under the Act in respect of both FTB and CCB that the special circumstances must be such as to have prevented the lodging of a claim. The word prevented is not defined in the Act either. I do not see that that word is confined to mean only being physically prevented. Being physically prevented is only one way in which a person may be prevented.

11. I am reasonably satisfied that there are special circumstances in this case.

12. The Applicant Ms Monteith is a single mother of two children. She left her husband in August 2011. The children are not biologically hers. She says her husband now lives on a boat and sails the world.

13. One of her children was left with her under a permanent care order and the other was left with her by a relative. That relative was her sister who the applicant said is a drug addict. The Applicant is aged 49 but both children are still quite young. The Applicant’s mother does not help her out with care, nor do her three sisters—although she said her sister living in Wodonga would help her out if she could. Although the children have been formally in her care for many years, she has not received any family assistance benefits.

14. During the first part of 2014 Ms Monteith said she felt under extreme pressure. She had been working in a high pressure job (consulting to a wholesaler) for three or so days a week in Melbourne (in Bayswater, which is about an hour’s drive from the city). She was still living in Torquay but staying in a hotel in Melbourne. The children stayed at home or went to school etc and were looked after by a nanny. Torquay would be about a two hour drive from Melbourne. She would pay the hotel bills (of about $120.00 per night) and the cost of nanny hire (about $210.00 per week).

15. However she found this arrangement unsatisfactory. She could not give the children all the care they needed and worse still she said they were fighting all the time. She made a decision to work part time and then to study full time doing an interior design course. This was particularly difficult because she was used to having a working life—having been in sales of one kind or another including working for Target as a retail buyer. During her marriage which lasted 22 years she had been the main breadwinner and her husband had suffered depression for much or some of the time.

16. Her life was obviously very hectic combining work with looking after the children who were proving difficult (one suffering attention deficit disorder). She said she did not stop, but her primary concern was to care for the children and to balance that with employment. In other words, she wanted to bring more flexibility into her life and ensure she had the income and time to look after herself and the children adequately. In the end she made the regretful decision to give up her job to concentrate on the children and to commence study to open up a prospect of work of a specialist nature.  

17. Ms Monteith said was under so much pressure that she felt the need to visit her doctor in the first half of 2014 to get medication to help. She was prescribed anti-depressants and tranquilisers. These had the effect of calming her down but they also made her sleepy.

18. Furthermore at about this time in the first half of 2014 and approaching the cut-off date for lodgement of her FTB and CCB claims she found that there were as many as perhaps 10 warrants out for her arrest.  These were not for things she had done wrong. They totalled about $5000.00 and were for fines incurred by her husband after she had separated from him. She appeared in court and explained the situation to the magistrate who appears to have taken a lenient view. Nonetheless this particular episode was still very troubling for her.

19. Against this background the Applicant failed to lodge her claims on time. The context I am satisfied is one that qualifies as unusual uncommon or exceptional and thus as special under the Act. I consider the circumstances to be quite disabling. In effect the Applicant’s capacity was reduced by events to a point where she was prevented from lodging her claims because she was prevented from being able to properly attend to her affairs.

20. There is, however, more to say on the question of special circumstances.

21. It appears that in the period leading up to lodgement time, the Applicant was relying on advice from Departmental personnel. She was entitled to do so. She had been dealing with a staff member named ’Meredith’. But Meredith went off on leave (perhaps) and ‘Tarryn’ filled in for her. They were both in the ‘Grandparent advisers’ unit in the Department.

22. Ms Monteith says that before Tarryn assumed her role, Meredith told her the Department would do everything for me. She affirmed that Meredith said we will tell you what you are entitled to. She said she understood this to mean that she would be given all the information she needed and that this would be done in a timely manner.

23. Indeed, Tarryn even went to the extent of taking remote command of Ms Monteith’s personal computer from her Department office to complete the relevant forms for her. This lasted for about two hours.

24. Ms Monteith not unreasonably says of Tarryn that I believed she knew what she was doing at the time. She also says I would have lodged the proper forms if they had been given out.

25. The Applicant says she was told when finding out that the proper forms had not been lodged that this was due to departmental error.

26. I am reasonably satisfied that the Applicant failed to lodge forms on time because she was prevented by special circumstances. The circumstances of this matter are altogether unusual uncommon or exceptional. Or to use the remarks in Angelakos, not ordinary or usual.

27. She was prevented by circumstances which were disabling in that they reduced her capacity to act at the appropriate time. If this is not so she was prevented also by assurances she was given by the Department. In the absence of those assurances she would have lodged the claims herself. In both ways the Applicant thus was ‘prevented’.

28. The decision under review is set aside with it being noted that time is extended accordingly to a further period to enable the FTB and CCB claims in question to be lodged and then processed.

29.      

30.      

31.      

32.     I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean

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

Associate

Dated 2 March 2016

Date of hearing	17 February 2016
Applicant	Julie Monteith
Advocate for Respondent	Julie Zhou