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

[2018] AATA 458

Shaikh and Secretary, Department of Social Services (Social services second review) [2018] AATA 458 (6 February 2018)

Division:GENERAL DIVISION

File Number:           2017/1516

Re:Jazib Shaikh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:6 February 2018

Date of written reasons:        8 March 2018

Place:Sydney

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 24 February 2017 is set aside and in substitution it is decided that the applicant’s claim for job commitment bonus may be made by 27 July 2016.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – Job Commitment Bonus – whether applicant made claim for payment of bonus within 90 days of becoming eligible – whether there are any special circumstances preventing the applicant from making the claim within 90 days – special circumstances – failure to receive electronic or SMS notification – decision set aside and substituted.

LEGISLATION

Electronic Transactions Act 1999 (Cth)

Social Security Act 1991 (Cth), s 860

Social Security (Administration) Act 1999 (Cth), s 27D

CASES

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Dranichnikov v Centrelink [2013] 75 ALD 134
Groth v Secretary Department of Social Security [1995] 40 ALD 251, [1995] FCA 1708
Nicholson v Secretary, Department of Social Services (2016) AATA 630
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Rahim [2010] AATA 946

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

8 March 2018

1. The Tribunal is thankful to the parties for the efficient and helpful presentation of their evidence and submissions. In particular, the Tribunal commends the applicant, Jazib Shaikh, for his detailed evidence, his attention to detail and the documentary evidence he provided the Administrative Appeals Tribunal with, to support his submissions.

2. In terms of the factual situation in this case, there is very little in contention between the parties. The applicant gave very forthright, clear evidence and did his best to answer all the questions that he was asked. The Tribunal has no reason to doubt his evidence and the respondent did not seek to challenge it in any material way. The matter turned on the interpretation of the law as it existed at the time. 

3. It should be noted that the Job Commitment Bonus has been repealed since 2016. This particular benefit, the Job Commitment Bonus, does not exist anymore and has not since the end of 2016.

4. This Tribunal’s role is to look at what the law was at the particular time and what the applicant was entitled to.

5. It was common ground that the benefit, the subject of this appeal, was a benefit that Mr Shaikh was entitled to. He had completed the 12 months of paid work that was a prerequisite. He was in the right age group to qualify and, accordingly, it was a benefit which he could claim. He had 90 days within which to claim it when it became due, that is, at the end of 12 months of full time employment, which the parties agreed, was in effect 8 April 2016. The applicant started work on 8 April 2015 completing 12 months at midnight on 7 April 2016.

   BACKGROUND

6. The reviewable decision is a decision from the Social Services and Child Support Division of this Tribunal (‘AAT 1’) on 22 February 2017 which affirmed a decision made by an authorised review officer from the respondent Department made on 29 September 2016, to reject Mr Shaikh’s claim for the Job Commitment Bonus (‘JCB’) payment.

7. The Tribunal must look at whether the applicant was qualified to receive a Job Commitment Bonus Payment. Both parties accept he was so entitled. The Tribunal must also look at whether he made his claim for payment within 90 days of being eligible and, if not, whether there were any special circumstances that prevented the applicant from making his claim within 90 days.

8. There are some particular features to this case which do certainly make it different, and is one which the respondent’s representatives could not find case law directly in point. The Tribunal was in a similar position and the applicant is not a lawyer and could not assist on that point. 

   EVIDENCE

9. In May 2013, the applicant contacted the respondent about his intention to make a general claim to the Department of Social Services for Newstart allowance. He gave his telephone contact number, and indicated that he wanted to be automatically subscribed to the electronic messaging service (‘SMS’).

10. He was informed by SMS sent to his telephone number on 24 May 2013 that this had duly occurred.

11. He completed, on 2 July 2013, a Customer Declaration Form for Newstart Allowance and gave his mobile phone number. On 11 July 2013, he subscribed to online letters with the notification method being by SMS. He was sent on that day a “Welcome to Centrelink” online letter notice, and that was sent to that mobile number. Also, on that day, a “Welcome to Centrelink” online letter status was delivered to his online account, and that included his obligation to check his online letters regularly.

12. On 2 July 2014, he was sent a notice telling him he may be eligible for a Job Commitment Bonus of $2,500 after 12 months of continuous work, and that he had 90 days to make the claim once he became eligible. He is uncertain as to whether he got that notice. He simply cannot recall receiving it.

13. The first time he seems to have been aware of that bonus was in early July 2016, but he indicated to the Tribunal that he may have received that earlier 2014 notice, but had no recollection of that.

14. The applicant supplied to the Tribunal records, which go back to November 2014, of all the notifications that he received.  I will be addressing the notifications shortly.

15. On 4 July 2014, an SMS message was sent to his nominated mobile number informing him that he had a new Centrelink message, which, it seems, was that message of 2 July. It seemed that quite often the SMS would be after a notice was sent. In some cases, it seems quite likely up to three weeks afterwards, referring him back to a notice and that seemed to be a modus operandi undertaken by Centrelink in relation to notifying him

16. On 10 February 2015, he discussed his Newstart Allowance with a Departmental Officer. He commenced employment on 1 March 2015. It was not paid employment and he did not seek to indicate that he was eligible for any other allowances until such time as his paid employment commenced as at 8 April 2016. At all times, the required documentation is supplied by him to the respondent department.

17. The conversations he appeared to have with Centrelink indicated that of a very honest claimant and a person who was not trying to claim for things that he was not entitled to.

18. He was quite adamant that when he commenced work, he was working initially on an unpaid basis. The Tribunal notes that it may have been easy for the applicant to say that he commenced employment from 1 March 2015 and the 12 months commenced from that time, but he was always, quite meticulous in terms of giving the correct information. 

19. He left Australia briefly on 14 February 2016. On 8 April 2016, a notice was sent to him that indicated that the department was writing to him about his eligibility to make a claim for the Job Commitment Bonus of $2,500 after he had been in continuous gainful work for 12 months. Indeed, on that day, he had been. He had 90 days to make the claim. The notice stated:

    What you need to do, you have up to 90 days to make your claim. If special circumstances exist such as serious illness or hospitalisation during the claim period, you will have a further 90 days to make your claim. You will need to provide evidence of your continuous work with your claim. You can make your claim using our online services

20. The notice further said:

    Go to your MyGov account. Go to humanservices.gov.au online and log onto Centrelink Services Online

21. He was referred to another website address if he wanted more information

22. There was a further document created on 22 April 2016  which stated:

    Your SMS Message: You have a new Centrelink letter online. View your letter via your MyGov account or Centrelink Services Online or at ExpressPlus app. Do not reply by SMS. Date created, 22 April 2016.

23. Mr Shaikh gave evidence in relation to how he operated with Centrelink. He told the Tribunal that if he received an SMS message, he would then go back and check his email for any Centrelink correspondence. His email would contain the Centrelink letter.

24. He said he would do that whenever he received an SMS message and the Centrelink box would have various things like Information Circulars or letters inviting him to contact them about something. Some of it was routine, some of it was quite important, but because it was likely to be important, he would go and check it if he got an SMS message.

25. He indicated he did not get that SMS message of 22 April 2016. He also told the Tribunal that there were certain worrying issues going on in his life around this time which were occupying his time.

26. He did concede in his evidence that it may have been the case that even if he did not have these problems (concerns about whether his unborn baby had Down Syndrome or not, and the issues he was having with his wife’s male in laws who had been threatening toward he and his wife), he still may not have checked his email.

27. He stated he would check his email from time to time but there was not any particular time he would do it. Dr Thompson for the respondent suggested:

    Would it be something you would do perhaps on – you would pick them up and do it then?

28. That was not the situation; it was just random, and he fully conceded that he may well not have checked the email even if he did not have these other dramas in his life.

29. The applicant, on 30 June 2017, ceased work as he was made redundant.

30. He had been working in an area where he had used his Accountancy Degree and qualifications; he is now driving Uber taxis. He is not on Centrelink or any other form of benefit. He receives a reasonable wage from driving Uber taxis and does not need to seek Centrelink payment. He is actively looking for work in his chosen profession.

31. The applicant impressed the Tribunal as an intelligent, bright young man who appears to be doing his best to contribute with his wife and child to the Australian community. He has done courses since he got to the country in 2005 and has worked in various jobs; stacking shelves, being an Uber taxi driver, and working in a furniture store before he got some employment  in his chosen profession.

    LEGISLATION

32. The legislation in relation to this matter is contained in the Social Security Act 1991 (Cth), the Social Security (Administration) Act 1999 (Cth) and the Electronic Transactions Act 1999 (Cth).

33. Section 860 of the Social Security Act, describes the JCB; namely, that  a person who had been on a Newstart allowance for 12 months and then completed 12 months in continuous gainful work, may qualify for a JCB. A person had to be a certain age to qualify (the applicant satisfied this and all the other relevant requirements).

34. The relevant legislation also provided that a person had 90 days within which to claim the JCB and if special circumstances existed – and  a specific example, namely  hospitalisation and serious illness as an example – then one could get an extension for a further 90 days.

35. Section 27D of the Social Security (Administration) Act 1999 is relevant here, and it deals with time limits for claims for Job Commitment Bonus. For claims, section 97D(1) states:

    Subject to this section, a person’s claim for a job commitment bonus must be made within the period (the initial period) of 90 days after the person is qualified for the bonus.

36. For Extension in Special Circumstances, subsection (2) states:

    The claim may be made after the end of the initial period if the Secretary is satisfied that there are special circumstances applying to the person that prevented the person from making the claim within that period. If so, then, subject to subsection (3), the claim must be made within 90 days after the end of that period.   Subsection (3) (which enables a person who is entitled to a JCB for 2 consecutive years to claim the first year’s bonus at the same time he/she claims for the second year’s bonus) is not of relevance here, but subsections (1) and (2) are.

37. It seems that around about late June/early July 2016, the applicant and his wife had ascertained through a scan that the baby was whole, appeared to be in good condition, and their fears about Down syndrome, therefore, were unfounded. Also, around about that time, it seems his aggressive and threatening step-brother in law, who was living in Sydney about 10 minutes down the road  from where the applicant and his wife lived, and who clearly had been a worry to both the applicant and his wife, had gone back to Saudi Arabia.

38. It would seem that the applicant’s sisters in law had kept his wife abreast of what was happening in the family. They had told the applicant’s wife that, their father – the applicant’s father in law – had been in regular contact with his son in Sydney, and had told  his son to:

    “Find out where she (the applicant’s wife) lives and take it from there.”

39. The applicant took that to mean that his wife could be spirited away to the Saudi Embassy and then forced back to Saudi Arabia. The applicant and his wife had in fact contacted the Embassy and the Embassy had indicated that he had done the wrong thing in marrying the applicant.

40. He feared that it also could conceivably mean something more dramatic than mere kidnapping might occur in terms of potentially actually taking out his wife (i.e. killing her), because she had somehow disgraced the family in marrying the applicant.

41. The Tribunal can certainly imagine this situation would cause the applicant and his wife considerable angst. Indeed, in August the previous year, the applicant had reported his concerns to the NSW Police. The applicant was understandably concerned and it seems his fears were real, but they had evaporated at the end of June /early July 2017. It would seem at that time, the applicant put his mind to, amongst other things, checking his inbox and finding this note from the department.

42. As a result, on 7 July 2016 he attempted to email through his application. He said he started his application sometime between 6pm and 7pm, and finished it around 8pm in the evening. He sensibly took some proof of that; and there are three documents before this Tribunal which indicate that he attempted to apply online and unfortunately the Department’s system was down and the page was not working.

43. He did this on two different internet browsers. He did this on Internet Explorer on two occasions and on Google Chrome on one other occasion. He also tried on two other occasions, that evening, to lodge it 

44. At T13 of the T-documents[1], it states:

    page isn’t working. Try reloading the page, cleaning your Cookies

    [1] T13, pp. 42

45. It appears that was at 8.11 pm on 7 July 2016.

46. Again, at 11.44pm using a similar program, the following error appeared:

    page isn’t working Try reloading the page, cleaning your Cookies

47. At 11.46 pm on 7 July 2016, using a different system, the following error appeared:

    This page can’t be displayed. Make sure the web address is correct. Look for the page with your search engine. Refresh the page in a few minutes. Fix connection problems

48. It is therefore obvious to the Tribunal that he tried his best on that occasion to lodge his claim within the claim period, albeit on the last day.

49. He then rang up Centrelink at the first available opportunity, namely the next day. He indicated to the Tribunal that he would have also rung up on 7 July but it was too late. He could not ring Centrelink as their offices had closed so he tried the next day.

50. Unfortunately, after an hour and a half of waiting on the line, the phone dropped out. He had to go to work; otherwise he would have actually gone into Centrelink and spoken to someone in person. Although even if had he gone in, he would still have to log on online.

51. The respondent is correct in saying there is no evidence to indicate whether the system was down from after the midnight on 7-8 July through to 27 July when he made a claim.

52. However, the applicant said, having tried to unsuccessfully make a claim electronically within time, and then on the next day ringing up to sort it out, believed he was out of time, so there was no point at that stage doing anything further. He was also busy working and his wife was due to have her baby.

53. Several weeks later, when he was making a “Dad and Partner Claim” - where he had to tell Centrelink when the baby was due to be born, he attempted to and successfully made a claim at 6.50 pm on 27 July 2016. On that document the departments notes that it has accepted his claim, but then says:

    Important information about your claim: You are outside the time period to claim for this First Job Commitment event. If an extreme circumstance has prevented you from submitting your claim by 4 October 2016, you will be required to provide proof in order for your claim to be assessed. Have you been prevented from submitting your claim due to a medical condition affecting you or someone you care for/any extreme circumstance? If you have answered yes to any of the above questions, you will need to attach evidence to this claim. What if I answered no? When you complete a further 12 months of continuous work, you will become eligible to claim Jobs Commitment Bonus as you will be able to claim this payment when you make a claim for the second payment

54. It should be noted that at the end of 2016, this benefit was repealed by the Federal government and so it may no longer have been an option for the applicant to wait until April 2017 to lodge two claims together.

55. This claim was successfully submitted, but rejected by the Department as being out of time.

    ISSUES

56. The issues the Tribunal needs to consider are whether the applicant made his claim for payment of the bonus within 90 days, and if not, whether there are any “special circumstances” that enable him to lodge it within a further 90 day period.

57. As I indicated earlier, the applicant has been thorough in preparing his case and supplying documents in relation to this matter.

    The Job Commitment Bonus claim

58. The MyGov Inbox is displayed at T1 of the T-documents. It starts on 12 November 2014. The applicant has no recollection of the documentation on 2 July 2014 as he seems to think that the first conscious notification he received of this particular benefit was around early July 2016 when he looked at the letter from Centrelink of 8 April 2016.

59. However, his MyGov Inbox shows an interesting pattern. All of these things are from Centrelink to him as the subject and they appear in his inbox folder as follows:

    ·On 12 November 2014, “Copy of your SMS”

    ·On 22 December 2014, “Copy of your SMS”

    ·On 22 December 2014, “Newstart Allowance”

    ·On 23 December 2014, “Newstart Allowance”. It would seem that this SMS and that of 22 December 2014, “Copy of your SMS” referred to those two Newstart Allowances which he was getting a little bit later.

    ·On 30 December 2014, “Copy of your SMS”

    ·On 9 January 2015, “General document from Centrelink”. It is quite likely the “Copy of your SMS” on 30 December 2014” referred to the general document received on 9 January 2015.

    ·On 19 January 2015, “Payment”

    ·On 19 January 2015, “Newstart Allowance”

    ·On 19 January 2015, “a Benefit Payment”

    ·On 4 February 2015, “Copy of your SMS”

    ·On 6 February 2015, “Copy of your SMS”

    ·On 10 February 2015, “Copy of your SMS”

    ·On 10 February 2015, “Newstart Allowance”

    ·On 10 February 2015, “General” document

    ·On 11 February 2015, a “Newstart Allowance.” It would seem this letter relates to the three SMS’s received on the 4, 6 and 10 February 2015 respectively.

    ·On 23-24 March 2015, “Newstart Allowance”

    ·On 26 March 2015, “a General Document”

    ·On 21 and 23 April 2015, “Copy of your SMS.” These may have related to the “Newstart Allowance” on 8 May 2015.

    ·On 8 May 2015, “Newstart Allowance”

    ·On 15 May 2015, “Newstart Allowance”

    ·On 14 July 2015, “Payment”

    ·On 14 July 2015, “Introducing the Inbox”

    ·On 24 July 2015, “Welcome to ATO using the Inbox”

    ·On 30 January 2016, “Welcome to Medicare letters online”

    ·On 4 February 2016, “Your statement of Medicare Benefits by EFT”

    ·From May 2015 to 4 October 2016 inclusive, interestingly, there are no “Copy of your SMS”. It may mean that they might have been sent but not received in relation to those other documents, or maybe those documents did not warrant it.

    ·On 8 April 2016, “General.” This is the letter referred to above, informing the applicant that he may be eligible; he was eligible from that date.

    ·On 27 July 2016, “Welcome to Centrelink Letters Online.”

    ·On 1 August 2016, “Dad and Partner Pay”

    ·On 16 September 2016, “Dad and Partner Pay”

    ·On 5 October 2016, “Copy of your SMS”. This might relate to the next item, “General” received on 23 October 2016.

    ·On 23 October 2016, “General”

    ·On 28 October 2016, he has four items: “Check your Income Tax Notice of Assessment” (on two occasions), “Information about your 20 Income Tax” on one occasion and “Check your statement of account” on one occasion. 

1. These records display 37 messages he received as recorded in the MyGov inbox from 12 November 2014 to 28 October 2016.  These include 9 “Copy of your SMS” messages.

2. The Department, it appears from the respondent’s evidence, has sent out on 22 April 2016, an SMS, but the applicant clearly seems not to have received it as it is not recorded in the Government’s MyGov inbox system. 

3. The applicant himself has said that despite the problems he was facing at the time with his wife’s pregnancy, the fear of Down Syndrome and the real fears he had for his and his wife’s safety as a result of the issues with his father in law and step-brother in law, he still would have checked his inbox if he had received an SMS. 

4. The above represents the basic facts as presented to the Tribunal by the parties.

   Special Circumstances

5. Special circumstances have been defined in a rather restrictive way and it may be that the applicant would have difficulty proving that the issues he and his wife was having with the pregnancy, combined with the threats from his wife’s male family members, could be said to amount to special circumstances.

6. “Special circumstances” is not defined by legislation. There is considerable case law which provides guidance. In Dranichnikov v Centrelink [2013] 75 ALD 134, it was held:

7. What is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary.

8. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the AAT stated:

   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 circumstances answer any of these descriptions must depend upon the context in which they occur.

9. In Groth v Secretary Department of Social Security [1995] 40 ALD 251, [1995] FCA 1708 at 545, the Federal Court stated:

   The phrase “special circumstance” 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. That was, I consider, the only enquiry to be undertaken in this 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.

10. I would agree with that.

11. The internal guidelines used by Centrelink suggest incapacitating illness and hospitalisation as examples of special circumstances, and indeed, they normally are. In a case where special circumstances were granted, Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J stated at 33,

    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.

12. The applicant argues that his circumstances with his wife and baby, the family circumstances, threats, and the fact that he made an application within the 90-day time limit, all amount to a situation where he should qualify for the actual payment as such.

13. Also, the fact that he did not receive the SMS which would have, regardless of his circumstances, triggered him to go and have a look at what exactly the department were sending him would have meant that he would have made his application well and truly within the timeframe.

14. There is ample case law to show that not receiving something does not amount to special circumstances. The respondent in submissions quoted Deputy President Constance in a number of cases stating that Departments do not actually have to tell people of what law changes there are. In fact, in some cases such as Family Tax Benefit cases, the law does change fairly frequently and the Department sends out messages when the law changes which people sometimes do not receive. Firstly, it should be appreciated that the department is not obliged to do it and secondly, it cannot know each individual case because in those situations, people’s circumstances do change and affect their entitlement to Family Tax Benefits.

15. This is a significant issue that Deputy President Constance has referred to in a number of cases.

16. The fact that someone does not get something in their mailbox or in their computer does not mean that they will necessarily qualify, and that fact will amount to a special circumstance. In the case of Nicholson v Secretary, Department of Social Services (2016) AATA 630, the issue of the special circumstances, as described in a number of various cases, was discussed.

17. Indeed, one case mentioned in Nicholson where special circumstances were found was the case of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Rahim [2010] AATA 946. Mr Rahim had mental health issues. Whilst overseas, he did not receive correspondence from Centrelink. Accordingly, he did not complete the form required in time and his family tax benefit was cancelled. He had a psychotic illness; his wife did not speak English and he had been hospitalised in various countries around the world. He clearly was a very sick man and his circumstances were held to be special.

18. In the case of Nicholson, the applicant’s accountant would normally get everything ready for Mrs Nicholson and her husband, to lodge their claim for FTB. Mrs Nicholson was normally meticulous in providing the relevant information to the accountant. Unfortunately on one occasion, due to family and business pressures, Mrs Nicholson and her husband did not supply the relevant information to the accountant. The accountant was a bit slack and did not request it.

19. Centrelink actually had sent out to Mrs Nicholson’s address, twice, the changes in the Family Tax Benefit indicating that they had to apply earlier as the law had changed. Basically, they no longer had two years to apply, but only one.

20. Despite the fact that the couple were having considerable personal and business problems, and did not recall receiving any mail from Centrelink, it was deemed not to be special circumstances. The mail had actually been sent out. There were issues surrounding Mrs Nicholson’s sick father and a very ill wife of Mr Nicholson’s business partner that affected the running of the two family businesses. This took up a lot of her time and meant she was a lot busier than normal.

21. It was just bad luck that Mrs Nicholson did not get the Centrelink letters. Had she received them, and given that she was a very efficient woman, she would have certainly attended to the matter. However, she did not and Centrelink had tried. There was no obligation to, but they had tried, and it was unfortunate as it turned out. This had never happened before and was most unlikely to again.  It also seemed that the accountant may have been rather slack in this instance in not alerting Mrs Nicholson to the fact that the documentation he relied on had not been delivered to him. He did not do so.

22. The Tribunal suggested (as had Deputy President Constance in a similar case) that, perhaps, the actual remedy was against her accountant rather than the public purse.

23. In applying the above case law to the facts in this matter, it would seem to me that not receiving the actual SMS (and I am satisfied the applicant did not get that text), unfortunately, does not help the applicant.

24. If the applicant had received the text, I would be quite satisfied that, even despite his other problems, he would have made an application at that time.

25. I am also satisfied that although the applicant had some significant problems, including potentially life-threatening situations involving his step-brother in law until the end of June – which perhaps in itself could constitute special circumstances, but could not be classified as such as he indicated to the Tribunal – that he could not say that that was the reason he did not check his inbox. He said, despite all his problems, he still may not have checked it.

26. I should add that the issue in relation to his son would not constitute a special circumstance on the basis that he and his wife had had scans done and although the circumstances were worrying and it was one of the factors which might have prevented him from checking his mailbox, it did not, in itself, constitute special circumstances, especially in the light of his own admission made above.

27. Fundamentally, despite all of his problems, if they had not been present, he may still have not checked his mailbox.

28. The reason he did not check his mailbox was because he did not receive an SMS to tell him to.

29. It does seem, however, that when his problems faded away and were not such an issue, he did check his mailbox and thus became aware of what he was entitled to and made the application.

    CONSIDERATION

30. As indicated earlier, this Tribunal has to decide whether the applicant made his claim for payment of the bonus within 90 days of becoming eligible and if not, whether there were any special circumstances that prevented him making that claim within 90 days.

31. His circumstances, whilst serious, for the reasons given above, with the possible exception of the potentially life threatening situation in relation to his brother in law, did not amount to special circumstances. However that is not the end of it.

32. I am satisfied that he made an attempt on about five occasions on the evening of 7 July 2016 to submit his claim. He had 90 days to do so.

33. It is the Secretary’s position that special circumstances have to apply to prevent the person from making a claim within that period, and that is the whole period. One day simply is not enough. He had 89 other days in which to make a claim.

34. I understand that submission,  but what I have to consider is whether the applicant made his claim for payment of the bonus within 90 days of becoming eligible, and if not, are there special circumstances to prevent him.

35. This is not a situation of a man making a claim three weeks after (which is when his actual claim went through). The applicant is trying to make his claim on the last day and although it might have been on the 90th day, it is still within the timeframe.

36. He is entitled by law to make a claim on the last day allowed and had the system been working, that claim would have gone through and we would not be here.

37. The applicant has done everything he can to attempt to make his claim within the claim period. It is not his fault that it did not go through. It was some computer malfunction at the other end.

38. Although it would have been appropriate if he had made it at some other time during the 90 day period, the fact he did it on the last day does not affect his situation.

39. As already indicated, there is good reason why he did not make his claim until day 90. They in themselves do not amount to special circumstances but they do explain why he did not make that claim until the last minute. It is not because he was slack.

40. I am mindful of Groth as paraphrased by the AAT1 who did not seem to consider this issue any further apart from just saying, “Mr Shaikh further submitted that he had difficulties lodging his claim”. I am not sure if this evidence was available to the AAT1. Special circumstances are not defined in the legislation, but there is substantial case law that establishes that special circumstances must be unusual and such as to result in an outcome that would be unfair or unreasonable if not given to consideration.

41. “Unfair and unreasonable” are two words that are quite important. Indeed, in Groth’s case, it says “unfair, unintended or unjust.” The legislation and the guidelines clearly indicate that there is a 90-day period. For whatever reason, the legislature intends to give people 90 days. The legislation envisages, in some instances, people not putting in their application until the last day.

42. I also do not think that the intention of a government department providing a service electronically, through electronic mailbox and a SMS system, would intend that that system would not be available to applicants. The intention would be that it would be available to customers and clients at any time within the 90 day period allowed by legislation to lodge a claim.

43. I am unaware of anywhere in this country where there any legislative provisions, or anything enshrined in law to the effect, that people have to be aware of that unwritten law, “Murphy’s Law”, that if something can go wrong, it will, and if one is dealing with something electronically and sending something to a government department, something will go wrong, someone will lose it, or the system will be down.

44. It would them flow from this that a prudent person would make sure he/she submitted their application early.

45. However, there is not, as far as I can see, any actual law that would indicate that that is a course that actually has to be followed.

46. The normal course of events is that if there is an accepted way of communicating with somebody else, such as a government department, then that communication, one assumes, would be deemed to be successful. The Tribunal does not agree with the respondent’s submission in relation to this point.

47. Clearly, one would expect that a system provided by the government would work.

48. In the circumstances in this case, the applicant tried on five occasions. What he then did the next day was ring up and after one and a half hours of waiting, the phone dropped out. The Tribunal notes that there has been recent media reports saying that unfortunately because Centrelink is such a busy department, there is an increase in phone calls dropping out. That is a common occurrence and it seems it occurred here.

49. Again, this indicates that the applicant made the attempt to actually speak to someone in Centrelink about the problem of the night before.  Unfortunately, he was not able to get through.  As it turns out, the evidence before the Tribunal indicated that even if he had, he would still have had to submit his application online.

50. At least he could have talked to a person at a Centrelink office and the matter may have been fixed at that point in time.

51. In all the circumstances, I think it would be unreasonable and unrealistic to expect the applicant to keep trying to ring after the phone dropped out after 90 minutes on the line.

52. Unfortunately, the phone connection drops out and being a law abiding citizen and understanding what the law is, he then realises he is out of time. When he attempts to submit his Dad and Partner claim on 27 July 2016, he then lodges his claim feeling he has nothing to lose as after all, it is only about 19 days outside of the 90 day time period.

53. All in all, I think this is a case where, were he not to be allowed to put that claim in on 27 July 2016, something unfair, unintended or unjust would occur.

54. I find the fact that he did all he reasonably could to lodge it on the last day of the 90 day period and the fact that the department’s computers malfunctioned in itself amounted to special circumstances that entitled him to a further 90 days period in which to lodge his claim which he easily did, lodging it successfully on 27 July 2016.

55. He has also given a reasonable excuse as to why he did not try to put it in until he did in terms of at the end of the period rather than during the period.

56. I think it would be quite concerning if the general population, in dealing with government departments, had to accept and expect that systems will be down and accordingly, they will not be able to correspond, receive information in a timely manner, submit claims, and respond to government departments by the desired mode (which the government department itself encouraged especially in online claims) on any given occasion.

57. To adopt this approach would mean that the only certainty a citizen could rely on when attempting to contact the relevant department within a given timeframe is for the citizen to get in early during that time frame in case something goes wrong and the system malfunctions.

    FINDING

58. Accordingly, I find the applicant qualifies for his benefit. I find he tried to make a claim for the bonus within the 90 day period allowed. It was not successful because of a system failure at the respondent department’s end. If it was the applicant’s computer acting up, then that would be the applicant’s issue. However, it is the government computer system acting up and that is something one should not necessarily have to expect and if it does occur (and I accept that these things do occur) that is a problem for government.

59. To find otherwise would lead to an unfair, unintended or unjust consequence.

60. This was a benefit (albeit one which has now been repealed) which the applicant was entitled to at the time and which he did, albeit at the last minute, for the reasons  given, made his claim within the 90 days; except, it was rejected because of computer malfunction at the department’s end. The applicant then made a claim on 27 July 2016, within that further 90 day period, that was accepted. No computer malfunction occurred on that occasion. That is within the 90 day period provided for special circumstances.

61. As the claim made within the original 90 day period was rejected and not accepted, for the reasons given above, this in itself enlivened the additional 90 day period as the circumstances on 7 July 2016 amounted to special circumstances.

62. It could also be said that in the circumstances, the claim made on 7 July 2016 could be deemed at any rate to have been accepted probably at 8:11pm that evening  when the first computer malfunction at the department’s end occurred (within the 90 day period).

63. For the reasons given above the decision of the AAT1 is set aside. 

    DECISION

64. The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 24 February 2017 is set aside and in substitution it is decided that the applicant’s claim for job commitment bonus may be made by 27 July 2016.

I certify that the preceding 123 (one hundred and twenty -three) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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

Associate

Dated: 8 March 2018

Date of hearing:	6 February 2018
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services