Sambevski and Secretary, Department of Social Services (Social services second review)
[2016] AATA 259
•22 April 2016
Sambevski and Secretary, Department of Social Services (Social services second review) [2016] AATA 259 (22 April 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3400
Re
Angie SAMBEVSKI
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr Conrad Ermert, Member
Date 22 April 2016 Place Melbourne The Tribunal affirms the decision under review
........................................................................
Mr Conrad Ermert
SOCIAL SERVICES - Family Tax Benefits - top-up payment - supplement payment - late lodgement of partner's tax return - no special circumstances - decision affirmed
LEGISLATION
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Acts Interpretation Act 1901 (Cth)
CASES
Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth and Director-General of Social Security (1995) FCA 1708
Davy and Secretary, Department of Employment and Workplace Relations [2007] 94 ALD 693
Secretary, Department of Social Services and Cannon (Social services second review) [2015] AATA 1028 (13 October 2015)REASONS FOR DECISION
Mr Conrad Ermert
22 April 2016
INTRODUCTION
Mrs Angie Sambevski, the Applicant, is partnered to Mr Nick Sambevski. During the period 1 July 2012 to 30 June 2013 Mrs Sambevski received family tax benefits (FTB) by fortnightly instalments. The rate of FTB paid during that period was assessed on an estimated combined adjustable income of $83,040 comprising $15,570 for Mrs Sambevski and $67,470 for Mr Sambevski.
On 18 March 2014 Centrelink issued Mrs Sambevski a notice advising her that she and her partner had until 30 June 2014 to lodge a tax return for the financial year 2012-2013 (FY 2012-2013) or advise that they were not required to lodge a tax return. Centrelink is the service provider for the Department of Social Services, the Respondent.
On 25 August 2014 Mr Sambevski lodged his FY 2013-2013 tax return with the Australian Taxation Office (ATO) and was assessed as having a taxable income of $44,900. On 3 October 2014 Mrs Sambevski advised Centrelink that she was not required to lodge an individual tax return for FY 2012-2013.
On 7 October 2014 Centrelink advised Mrs Sambevski that, based on the information provided, her FTB entitlement was $13,196.48, an amount of $8,706.98 more than she was actually paid. In the same notice Centrelink advised We are unable to pay your full Family Tax Benefit Supplement because your partner did not confirm your income for the 2012-13 financial year by 30 June 2014.
On 12 February 2015 a Centrelink authorised review officer (ARO) affirmed this decision. Mrs Sambevski sought review of the ARO decision by the (former) Social Security Appeals Tribunal (SSAT). On 9 June 2015 the SSAT affirmed the ARO’s decision.
On 7 July 2015 Mrs Sambevski lodged an application for a review of the SSAT decision. In her application Mrs Sambevski contends that she did not receive the Centrelink notice dated 18 March 2014. She contends she is unfairly suffering a loss due to a mishap in the delivering of a letter which was out of our control.
This matter is a review of the SSAT decision.
HEARING
At the hearing Mr Sambevski represented Mrs Sambevski and gave evidence by telephone under affirmation. Mr Mark Hester, a Principal Lawyer with the Department of Human Services, represented the Secretary by telephone.
For Mrs Sambevski I took into evidence as Exhibit A1 an email from Australia Post dated 12 February 2016.
I had before me the documents provided by the Secretary in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). For consideration I also had the Secretary’s Statement of Facts and Contentions dated 27 January 2016.
LEGISLATION
The legislation relevant to this matter is contained in A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act).
Section 32C of the Act, as applied for the 2013/2013 FY states relevantly:
32C Relevant reconciliation time – member of a couple, income tax return lodged within 2 years
(1) This section applies to the first individual for a same-rate benefit period if:
a) The first individual was a member of a couple throughout the same-rate benefit period; and
b) The first individual or the other member of the couple is or was required to lodge an income tax return for the relevant income year; and
c) The first individual continues to be a member of the couple until the end of the latest of the following:
i.The first income year after the relevant income year;
ii.…
iii.
Such further period (if any) as the Secretary allows for the other member of the couple to lodge the return, if the Secretary is satisfied that there are special circumstances that prevented the other member from lodging the return before the end of that first income year;
ISSUES
There was no disagreement between the parties in regard to the facts of the case. Both parties agree that Mr Sambevski did not lodge his individual tax return until 25 August 2014. This date is after the after the end of FY 2013/2014 which is the first income year after FY 2012/2013, the relevant income year.
Sub-section 32C(1)(c)(ii) of the Act, as it relevantly applied, provides that the reconciliation time can only be extended to 25 August 2014 if the Secretary is satisfied that there are special circumstances that prevented Mr Sambevski from lodging the return before the end of that first income year.
Both parties agreed that the only issue I must determine is whether there are special circumstances that prevented Mr Sambevski from lodging his return before the end of FY 2013/2014.
EVIDENCE
In his evidence Mr Sambevski said that he and his wife had not received the notice from Centrelink advising them of the reduced time to lodge their tax returns. He said that occasionally their letters are incorrectly delivered to their neighbours.
He said that they had always updated their earnings information with Centrelink. He stated that, had they received the notice, they would have complied with the advice and lodged his tax return earlier. He added that the Australian Tax Office had granted him an extension of time to lodge his return.
In answer to my questions Mr Sambevski said that the incorrect mail deliveries had been happening ever since they started living at their current address. He said they were not on speaking terms with their neighbour which made it difficult to follow up on mail. He said they had not considered arranging for an alternative mailing address or a post office box as he liked to have their mail delivered to their house.
In his submissions Mr Hester referred to the decisions in:
·Dobson and Secretary, Department of Social Services (Social services second review) [2015] AATA 892 (7 October 2015);
·Secretary, Department of Social Services and Field (Social services second review) [2015] AATA 903 (25 November 2015); and
·Secretary, Department of Social Services and Hollis (Social services second review) [2015] AATA 941 (4 December 2015).
Mr Hester contended that all three cases could not be distinguished from the current matter. The decisions found:
·there is no legal obligation on the Department to send notices to affected persons regarding changes in the law, and
·non-receipt of a notice, and
·lack of awareness of a requirement,
are not special circumstances within the meaning of the Act.
In his response Mr Sambevski said that they feel as though they are being reprimanded. He submitted that it was not fair as they were in need of the benefits.
TRIBUNAL CONSIDERATIONS
Mr Sambevski contends that special circumstances exist in this case as they did not receive the notice advising them of the change in the time allowed to lodge their tax returns.
In considering the issue I note the decision in Beadle and Director-General of Social Security (1984) 6 ALD 1 where the Tribunal stated at 12:
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. Whether the circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particularly quality of unusualness that permits them to be described as special.
I note also the decision in Groth and Secretary Department of Social Security (1995) FCA 1708 in which the Federal Court stated at 12:
The phrase “special circumstances”, it has been said, although imprecise is sufficiently understood not to require judicial gloss … it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. … It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary …
The effect of these decisions is that for circumstances to be considered as special they must, in their context, be unusual, uncommon or out of the ordinary and that nothing unfair, unintended or unjust had occurred as a result.
Unusual, uncommon or out of the ordinary
In this case Mrs Sambevski relied on the contention that the Centrelink notice was not correctly delivered to her address. Unfortunately this is not an unusual, uncommon or out of the ordinary occurrence. In recognition of the possibility of mail not being received by the intended recipient the following legislation has been enacted:
·Section 29(1) of the Acts Interpretations Act 1901 (Cth) provides relevantly:
Meaning of service by post
Where an Act authorizes or requires any document to be served by post … then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post;
and
·Section 224(3) of the Administration Act provides:
Notice of decisions
...
(3) If notice of a decision is given in accordance with subsection (2), notice of the decision is taken to have been given to the person at the time at which the notice would be delivered in the ordinary course of the post, unless the contrary is proved.
In this case no evidence has been offered to prove that the notice was not delivered. The evidence is only of a possibility that the notice may not have been delivered. Accordingly I find that only the possibility of Mrs Sambevski not receiving the Centrelink notice is not sufficiently unusual, uncommon or out of the ordinary to qualify as a special circumstance in the context of this case.
Unfair
In considering whether something unfair has occurred I note the decision of the Tribunal in Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693 in which, at paragraph 80, Deputy President Forgie found:
… The “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances … that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system … The system of administration of the SS Act … did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
Although Mr and Mrs Sambevski consider the decision to be unfair for them, the requirements of the Act apply equally to them and all other recipients of FTB. Indeed, a decision to favour Mrs Sambevski could be considered unfair to all others whose benefits have been withheld in accordance with the provisions of the Act.
The imposition of time limitations within the provisions of the legislation are clearly a measure to effectively manage the general administration of the social security system. Over-ruling those time limits without compelling reasons could be considered as unfair to the management of the system.
Adopting the reasoning in Davy I find that there is no unfairness to Mrs Sambevski in this case.
Unintended
In considering whether something unintended has occurred I note that the intent of the provisions of section 32C(1)(c)(ii) of the Act, as it relevantly applied, is quite clear. The relevant reconciliation time can only be extended if the Secretary is satisfied that there are special circumstances that prevented the other person from lodging the return before the end of the first income year. Without special circumstances the intended consequences are that the person is not entitled to an extension of time and is not entitled to consideration of the relevant benefits.
I am satisfied that nothing unintentional has occurred in this case.
Unjust
As the decision to not extend the reconciliation time is in accordance with the provisions of the Act and is not unfair it cannot be classified as unjust. I find accordingly.
Special Circumstances
I have found that Mrs Sambevski’s circumstances are not unusual, uncommon or out of the ordinary within the context of the administration of the Act. I have found also that nothing unfair, unintended or unjust has occurred as a result of the decision.
I find that Mrs Sambevski’s circumstances are not special circumstances within the terms of the Act.
I note that my finding is consistent with the decision of the Tribunal in Secretary, Department of Social Services and Cannon (social services second review) [2015] AATA 1028 (13 October 2015) in which Deputy President Constance found:
15. I am satisfied that about 17 March 2014 the Secretary forwarded a letter to Ms Cannon advising her of the change in the law and the need for her partner to lodge his return by 30 June 2014. On the basis of Ms Cannon’s evidence, I am satisfied that, for reasons which are unknown, Ms Cannon did not receive this letter.
16. …
17. As a matter general principle, ignorance of the law is no excuse for a person’s failure to comply with it. In addition, there is no legal obligation on the Secretary or any Government Department to advise potential claimants of changes in the law which may adversely affect them.
18. On this basis I am satisfied that Ms Cannon’s lack of awareness of the changed law does not amount to special circumstances within the meaning of the Act. I note that this is consistent with the approach previously taken by the Tribunal. [See Wilson and Director-General of Social Services [1981] AATA 88; Andrews and Director-General of Social Security [1983] AATA 248]
CONCLUSION
I have found that the circumstances of Mr Samebevski and Mrs Sambevski’s being unaware of the time limits imposed by the Act are not special circumstances. There are no other circumstances claimed as special and that prevented Mr Sambevski from lodging his tax return for the 2012/2013 financial year by 30 June 2014.
As a result I am not able to exercise the discretion contained in paragraph 32C(1)(c)(ii) of the Act as it relevantly applied. Without the exercise of the discretion Mrs Sambevski is not entitled to receive an increased reconciled amount of FTB for the 2012/2013 financial year based upon her actual combined adjusted taxable income.
DECISION
I affirm the reviewable decision.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert .......................................................................
Associate
Dated 22 April 2016
Date(s) of hearing 9 April 2016 Applicant By telephone Solicitors for the Respondent Mr Mark Hester
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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