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

This matter concerned an appeal by Ms Sertich against a decision of the Secretary of the Department of Social Services affirming a refusal to grant her family tax benefit (FTB) due to a claim made out of time. The appeal was heard by a Member of the Administrative Appeals Tribunal.

The central legal issue before the Tribunal was whether Ms Sertich's circumstances constituted "special circumstances" that would permit the lodgement of her FTB claim after the statutory deadline. The Secretary contended that Ms Sertich's circumstances were not objectively special, but rather represented common life experiences, and that the Department had fulfilled its obligations to inform her of the requirements. The Secretary also argued that any financial hardship was a consequence of the decision, not a factor preventing the claim's lodgement, and that Ms Sertich had sufficient time and capacity to make the claim.

The Tribunal considered the established legal principles for determining "special circumstances," drawing on precedent from the Federal Court and the Tribunal itself. It affirmed that "special circumstances" must be objectively unusual, uncommon, or exceptional, rather than subjectively significant to the individual. The Tribunal noted that the circumstances should be viewed in their entirety to determine if they meet this threshold. The Tribunal also referenced the principle that a statutory discretion conditioned by the term "special" is not to be exercised lightly.

The Tribunal affirmed the decision under review. It found that Ms Sertich's circumstances, when viewed objectively, did not meet the threshold of being unusual, uncommon, or exceptional. Furthermore, the Tribunal concluded that even if her circumstances were considered special, they did not prevent her from lodging the claim within the available timeframe, as she had managed other significant matters during that period.