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

[2016] AATA 636

Sami and Secretary, Department of Social Services (Social services second review) [2016] AATA 636 (24 August 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3000
Re	Ranjini Sami
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	24 August 2016
Place	Sydney

The decision under review is set aside. In substitution the Tribunal refuses Mrs Sami’s claim for the lump sum FTB for the 2011/12 income year, and extends the time for Mrs Sami to lodge her FTB claim for the 2012/13 income year to 22 August 2014.

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

Senior Member

CATCHWORDS

FAMILY TAX BENEFIT – claim for lump sum family tax benefit – where claim filed out of time – whether special circumstances – where applicant suffered combination of serious circumstances – decision under review set aside and substituted.

LEGISLATION

A New Tax system (Family Assistance) (Administration) Act 1999 (Cth) ss 5, 7, 10, 13

Family Assistance and Other Legislation Amendment Act 2013 (Cth) sch 2B

CASES

Andrews and Director-General of Social Security [1983] AATA 248

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle and the Director-General of Social Security (1984) 6 ALD 1
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another (1999) 57 ALD 627

Wilson and Director-General of Social Services [1981] AATA 88

SECONDARY MATERIALS

Family Assistance special circumstances requests for 2012-13 financial year-new procedures

REASONS FOR DECISION

Senior Member A Poljak

24 August 2016

INTRODUCTION

1. Mrs Sami seeks review of a decision made by the (former) Social Security Appeals Tribunal (“SSAT”), dated 3 June 2015, affirming a decision of the Department of Human Services (“the Department’), made on 26 February 2015, refusing her claims for the lump sum family tax benefit (“FTB”) for the 2011/12 and 2012/13 income years (“the decision”).

2. The reason for decision was that the FTB claims were not effective claims because they were filed out of time pursuant to section 10(2) of A New Tax system (Family Assistance) (Administration) Act 1999 (Cth) (“the Act’).

3. It is common ground between the parties that Mrs Sami lodged lump sum family tax benefit claims for the 2011/12 and 2012/13 income year on 22 August 2014. In order to be effective claims under the Act, the claims needed to be filed on or before 30 June 2014.

4. The issue before the Tribunal is whether the time for Mrs Sami to lodge her FTB claims for both the 2011/12 and 2012/13 income year should be extended to 22 August 2014 by reason of special circumstances which prevented her from lodging them on or before 30 June 2014.

   RELEVANT LEGISLATIVE PROVISIONS

5. Section 5 of the Act provides that a person will only become entitled to be paid family tax benefit if they make a claim. Pursuant to subsection 7(2) of the Act, for a claim to be effective, it must be in the form and manner; and contain any information; and be accompanied by documents required by the Secretary.

6. From 1 July 2013 the statutory time period for lodging a FTB lump sum past period claim reduced from two years to one year after the relevant income year pursuant to section 15 of Schedule 2B of the Family Assistance and Other Legislation Amendment Act 2013 (“the amendment’).

7. Prior to the amendment, section 10(2) of the Act did not contain a discretion to extend the time if there were special circumstances that prevented the claimant from making a claim by the statutory time period. This is of particular significance in this matter for the FTB claim for the 2011/12 income year.

8. Currently, section 10(2) of the Act provides:

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

   (a)  the period does not fall wholly within one income year; or

   (b)  the period does 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. (emphasis added)

9. Subsection 10(2A) provides 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.

10. Pursuant to section 13 of the Act, if an effective claim is made, the Secretary must determine the claim in accordance with this Subdivision B of the Act. If a claim is not effective, it is taken not to have been made.

    2011/12 FINANCIAL YEAR

11. Prior to the amendment to section 10(2) of the Act in 1 July 2013, there was no discretion to extend the time for lodging a FTB lump sum past period claim. This is the relevant provision which applies to the 2011/12 income year. In other words, the special circumstances discretion to extend the time period of lodgement does not apply.

12. To be an effective claim, the FTB claim was to be filed by 30 June 2014. As stated above, it is not in dispute that the FTB for the 2011/12 income year was not filed until 22 August 2014. It follows that it is not an effective claim and should be refused.

    2012/13 FINANCIAL YEAR

13. In regards to the FTB lump sum past period claim for the 2012/13 income year, I have discretion to extend the time for lodging the claim if I am satisfied that, firstly, there were special circumstances and, secondly, that the special circumstances prevented the claimant from making a claim by the statutory time period.

14. Special circumstances are not defined in the Act however the Tribunal is provided some guidance by the decision of Beadle and the Director-General of Social Security (1984) 6 ALD 1 at [3]:

    An expression such as “special circumstances” is, by its very nature, incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances of unusual, uncommon or exceptional. Whether 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 particular quality of unusualness that permits them to be described as special (emphasis added).

15. In Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 at [33], Besanko J explained what is required for there to be special circumstances:

    I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances.  The danger is that the test will be overstated if the word ‘exceptional’ is emphasised.  It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case.  There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised.  Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case.  It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.

16. The Department’s Operational Blueprint policy document tilted ‘Family Assistance special circumstances requests for 2012-13 financial year-new procedures’ (“the Policy”) relevantly provides that special circumstances are “circumstances that are unusual or exceptional and are out of the ordinary…will only be granted in limited situations…”

17. Although not strictly bound by the Policy, there is nothing in the document that is inconsistent with the provisions or objects of the Act and accordingly it should be considered and applied; see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

18. Of significant assistance in this matter, the Policy states:

    When assessing a special circumstances extension request the nature of the event (or impacts associated with the event) must have had a significant impact upon the customer’s capacity to meet the relevant requirement within the time allowed. (emphasis added)

19. At hearing, Mrs Sami told the Tribunal that she wasn’t aware that a claim for FTB was made separately to lodging a tax return for the income year. Mrs Sami’s accountant lodged her tax return for the 2012/13 income year by 30 June 2014. She stated that she was only made aware that a separate claim needed to be made for a FTB when she contacted Centrelink in August 2014 to clarify how her childcare support payment was calculated. Mrs Sami lodged a FTB lump sum past period claim for the 2012/13 income year one week later, on 22 August 2014.

20. As a matter of 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; Scott v Secretary, Department of Social Security; Scott and Another v Handley and Another (1999) 57 ALD 627.

21. The secretary contends, and I accept, that a lack of awareness of the legislation does not amount to special circumstances. 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.

22. Mrs Sami told the Tribunal at hearing that there were a number of other difficult circumstances that impacted on her life greatly, preventing her from lodging a FTB lump sum past period claim by 30 June 2014.

23. The Secretary accepts that Mrs Sami has had a difficult time during the relevant period but contends that the circumstances are not unusual or uncommon.

24. As acknowledged by the Secretary, Mrs Sami’s husband was injured at work in 2007/08, and has been unable to work ever since. He has undergone three surgeries prior to 30 June 2014 and suffered from severe depression and suicide ideation. As a result of her husband’s inability to work, Mrs Sami told the Tribunal that from 2007/08 she was the primary career for her husband and their three children, now aged 17, 12 and 5.

25. As acknowledged by the Secretary, in 2012 Mrs Sami injured her back at work and shortly after, in March 2012, she unexpectedly lost her job of ten years due to no fault of hers. She told the Tribunal that she subsequently suffered from depression and anxiety attacks and struggled to find other employment as a result of the circumstances surrounding her dismissal. At hearing, Mrs Sami said that during the period when she couldn’t find other employment, she was very worried for her family and said that her life was in disarray. This only exacerbated her depression.

26. She initiated proceedings with Fair Work Australia which were withdrawn in July 2012. In September 2012, Mrs Sami initiated court proceedings in the hope of clearing her name for future job prospects. The case resolved in her favour in September 2015. She told the Tribunal that the court proceedings took up a lot of her time; acquiring statements from past colleagues and investigating the circumstances surrounding her dismissal.

27. In a report dated 2 September 2015, Dr Khan opines:

    “Due to the circumstances around her termination case with Fairwork, (Mrs Sami’s) depression is really bad and affected her concentration, memory, loss of motivation, became unsocial and had a state of guilt and shame…her husband, 3 children and home rely on her for the welfare of the family and it has affected (Mrs Sami) taking on that responsibility alone being unemployed, depressed than holding a full time job.”

28. Although Mrs Sami found employment in November 2012, she said at hearing that her depression and panic attacks impacted on her ability to work. Her probation period was extended and she was effectively only working part time until August 2013, when she was then able to work full time.  

29. Mrs Sami told the Tribunal at hearing that her husband’s condition deteriorated during the period March 2014 to December 2014 as he was suffering from stomach problems and was receiving “lots of treatment”. Although not falling within the relevant time period in these proceedings, Mr Sami’s worsening condition culminated in further surgery in September 2015.

30. At hearing she told the Tribunal that during the period March 2012 to June 2014, she was surviving week to week and that her sole focus was getting her life, and that of her family, back to normal. She was struggling to pay medical bills and was just trying to put “food on the table”.

31. I accept the evidence Mrs Sami has provided. I am satisfied that she was a reliable and honest witness. I also have before me numerous medical reports supporting the evidence of medical conditions suffered by both Mrs Sami and her husband which I have read and considered.

32. It is evident that Mrs Sami experienced particularly difficult circumstances over the past four years. Psychologist Dr Zhand states in his report dated 7 September 2015 that due to exceptional circumstances, he believes that Mrs Sami and her family “are in great need of support”.

33. I am satisfied that the series of events that occurred during the period March 2012 to 30 June 2014 had a significant impact on Mrs Sami’s capacity to meet the relevant requirement during the time allowed. In this period she suffered a back injury, lost her job in difficult circumstances, underwent court proceedings, and suffered from depression and panic attacks, all while caring for her husband and their three children.

34. While each circumstance alone may not be seen as unusual or uncommon, a combination of a number of serious circumstances such as these makes this case unique. I am satisfied that there were special circumstances that prevented the claimant from making a claim by the statutory time period for the 2012/13 income year.

    CONCLUSION

35. For all the reasons given above I set aside the decision of the SSAT dated 3 June 2015. I substitute a decision refusing Mrs Sami’s claim for the lump sum FTB for the 2011/12 income year and extend the time for Mrs Sami to lodge her FTB claim for the 2012/13 income year to 22 August 2014.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak. 

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

Associate

Dated 24 August 2016

Date(s) of hearing	20 July 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services FOI and Litigation Branch