Taylor; Secretary, Department of Social Services and (Social services second review)
[2016] AATA 63
•9 February 2016
Taylor; Secretary, Department of Social Services and (Social services second review) [2016] AATA 63 (9 February 2016)
Division
GENERAL DIVISION
File Number
2015/2662
Re
Secretary, Department of Social Services
APPLICANT
And
Alexis TAYLOR
RESPONDENT
DECISION
Tribunal Mr C Ermert, Member
Date 9 February 2016 Place Melbourne The Tribunal sets aside the reviewable decision and in substitution decides that Miss Taylor’s lump sum past period claim for Family Tax Benefit for the financial year 2012/2013 is not effective and is taken not to have been made.
[sgd]........................................................................
Mr C Ermert, Member
SOCIAL SECURITY - family tax benefits - extension of time to make application to Tribunal - whether there were special circumstances to justify an extension of time - decision set aside
Legislation
Social Security Act 1991
A New Tax System (Family Assistance) (Administration) Act 1999
Acts Interpretation Act 1901
Cases
Beadle v Director-General of Social Security (1985) 7 ALD 670
Dobson and Secretary, Department of Social Services [2015] AATA 892
Dranichnikov v Centrelink (2003) FCAFC 133
Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488
Secretary, Department of Social Services and Field [2015] AATA 903REASONS FOR DECISION
Mr C Ermert, Member
9 February 2016
INTRODUCTION
Prior to the 2012/2013 financial year (FY) Miss Taylor, the Respondent, received the family tax benefit (FTB) payments automatically on completion of her taxation return. For FY 2012/2013 Miss Taylor accepted the Centrelink generated estimate of her family income. Centrelink is the service provider for the Department of Social Services.
On 20 June 2012 Centrelink posted a letter to Miss Taylor’s address advising:
We cannot pay you FamilyTax Benefit because your and/or your partner’s income is too high. You should check your entitlement with us at the end of the income year when your family’s actual income is known...
Miss Taylor claims she did not receive this letter.
On 22 July 2014 Miss Taylor lodged a claim for a past period lump sum payment of FTB for FY 2012/2013. On 21 August 2014 an employee of Centrelink decided to reject the claim because the claim was not received by 30 June 2014, the end of the relevant claim period. For FY 2011/2012 and earlier, an applicant for the benefit had two years, rather than one, in which to make a claim.
On 21 January 2015 a Centrelink authorised review officer (ARO) affirmed the decision to reject the claim. Miss Taylor sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT). On 27 April 2015 the SSAT set aside the ARO’s decision and substituted its decision that Miss Taylor’s past period claim is effective and is to be assessed on the basis that it was lodged within the required timeframe.
On 29 May 2015 the Secretary applied for a review of the Social Security Appeals Tribunal (SSAT) decision. The Secretary contended that the SSAT erred in the finding about special circumstances, and that the Secretary has no obligation to advise a customer of legislative changes.
This matter is a review of the SSAT decision.
HEARING
At the hearing Mr Tim Noonan, a solicitor with the Department of Human Services, represented the Secretary. Miss Taylor represented herself and gave her evidence.
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). I took in as evidence the Secretary’s Statement of Facts and Contentions dated 28 August 2015, together with Supplementary T-documents:
·ST1 – Family Assistance Office (FAO) Income Summary Details (FISD) screen shot for 2010/11;
·ST2 – FISD and FAO Taxable Income (FTI) screen shots for 2010/11;
·ST3 – Notice Department to Ms Taylor dated 7 November 2011;
·ST4 – Payment Summary (PS) and Payment Details (PD) screen shots;
·ST5 – FISD and FTI screen shots for 2012/2013;
·ST6 – Online Document Record (ODR) 8 July 2014;
·ST7 – ODR 10 July 2014;
·ST8 – Extract from A Guide to Australian Government Payments 1 July – 19 September 2012; and
·ST9 – Extract from departmental website: Changes to the time period for lodging lump sum claims and confirming income.
For the Secretary, I took in as Exhibit A1 the statement of Michelle Glasspool dated 31 August 2015 together with its Attachment 1. I took in as Exhibit A2 the supplementary statement of Ms Glasspool, dated 4 November 2015 which corrected a date contained in her earlier statement.
Via telephone I heard evidence from Ms Glasspool who is employed by the Department of Human Services as an officer in the FTB Reconciliation and Annual Assessment Team, Families and Child Support Policy Branch.
For Miss Taylor I took in her statement dated 7 September 2015 with the following enclosures:
·1. 2007-2008 lump sum FTB payment advice, sent 12.09.08;
·2. 2008-2009 Lump sum payment advise, sent 18.11.09;
·3. 2009-2010 Lump sum payment advise, sent16.11.10;
·4. 2010-2011 Lump sum payment advise, sent 15.11.11;
·5. 2011-2012 Lump sum payment advise, sent 4.12.12;
·6. Letter sent on 22 June 2014 with paper FTB application; and
·7. Letter dated 21.01.15 from Lorraine Walker, Authorised Review Officer.
LEGISLATION
The legislation relevant to this matter is contained in A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).
Subsection 10(2) of the Administration Act, effective from 1 July 2013, 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.
ISSUES
Both parties agree that Miss Taylor lodged her claim for a past period payment of FTB on 22 July 2014 and that this date is more than one year after the end of FY 2012/2013, the relevant income year. Accordingly, for her claim to be effective the Secretary, or in this case, the Tribunal, must be satisfied that there are special circumstances that prevented her making the claim before 30 June 2014, that is within one year of the end of FY 2012/2013.
The issue I must determine is whether there are special circumstances that prevented Miss Taylor lodging her claim before the end of FY 2013/2014.
EVIDENCE
Mr Noonan asked Miss Glasspool to comment on Miss Taylor’s statement in Exhibit R1 at paragraph 4 of the Considerations;
... It should have been made clear at the time the proposed estimation was made that if we agree to the estimate then we are no longer entitled to FTB payments automatically and should we earn under that amount then we need to make an online claim within a 12 months period after 30 June 13.
Miss Glasspool stated that the Department calculates estimated incomes in late June, when the Consumer Price Index (CPI) is known. She said that if the customer will no longer be eligible to receive the benefit the Department writes to the customer to advise them to contact the Department at the end of the FY.
In regard to Miss Taylor’s statement at Considerations, paragraph 5 of Exhibit R1:
I believe being classed as a ‘new customer’ after deactivating our account we should have been informed of the new procedure as it now affects our family
Miss Glasspool said:
·Miss Taylor had not lodged a lump sum claim since FY 2008/2009 and was therefore not in the target group to be personally notified;
·Miss Taylor had elected to receive her payment at the end of the FY when her income was confirmed by the Australian Tax Office;
·A letter was sent to Miss Taylor on 20 June 2012 advising her that her payments were stopped and to contact the Department at the end of the FY to check her entitlements;
·If her payments had not been cancelled she would have received a reminder notice in March 2014; and
·It is difficult to know who will claim lump sum payments.
Referring to Considerations paragraph 6 of Exhibit R1, Miss Glasspool stated:
·Miss Taylor had asked for her payment to be deferred and paid at the end of the FY if eligible;
·Miss Taylor was regarded as an FTB instalment customer; and
·She was sent a letter dated 16 May 2012 (T-documents, page 7) inviting her to update her family income estimate for the 2012/2013 FY.
In her oral evidence, Miss Taylor stated that she had always received a lump sum payment of her FTB. She said that she did not know she had to apply on this occasion. She did not receive the notice from Centrelink dated 20 June 2012 (T-Documents, page 9).
Responding to questions from Mr Noonan, Miss Taylor said that she had no problems with her mail around the time of 20 June 2012 and that she had received the notice of 16 May 2012. Miss Taylor confirmed as accurate the evidence she gave to the SSAT as recorded in the reasons for decision (T-Documents, page 5, paragraph 19). She added that it had been a stressful year.
SUBMISSIONS
Miss Taylor contended that she did not receive the letter dated 20 June 2012, nor any other notification regarding the requirement to lodge her application for lump sum payment within 12 months of the end of the FY. She submitted that, had she received the letter, she would have contacted Centrelink and would have known of the requirement and complied with it.
Mr Noonan submitted that, under the provisions of the Acts Interpretation Act 1901, a notice is deemed to have been delivered unless it is proven otherwise. He contended that there was no evidence that the notice had not been delivered to Miss Taylor.
Mr Noonan also contended that the Secretary was not obliged to inform Miss Taylor of the change in the law about the reduced time limit to lodge the FTB claim. In support of this contention, Mr Noonan cited the decisions of the Tribunal in Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488 and Secretary, Department of Social Services and Field [2015] AATA 903.
Mr Noonan reiterated the Secretary’s submission in paragraph 44 of the Statement of Facts and Contentions, that Miss Taylor’s lack of awareness of the change in time limit for the lodging of her claim does not constitute special circumstances. He contended that, as a consequence, Miss Taylor’s claim for lump sum past period FTB for FY 2012/2013 is not effective and the claim is taken not to have been made.
TRIBUNAL CONSIDERATIONS
In considering Miss Taylor’s contention that she did not receive the Centrelink letter dated 20 June 2012 I note the following:
·Section 29(1) of the Acts Interpretations Act 1901 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.
Miss Taylor said she was unaware of any problem with her mail around the time of the posting of the notice of 20 June 2012 and that she had received previous correspondence from Centrelink. As there is no evidence to the contrary, I find that the letter dated 20 June 2012 is deemed to have been delivered. Nevertheless, I accept Miss Taylor’s evidence that she was not aware of the advice contained in that letter.
In regard to the issue of an obligation to inform Miss Taylor of the change in the time limit for the lodgement of her claim, I note the decision in Dobson and Secretary, Department of Social Services [2015] AATA 892. In Dobson the Tribunal found, at paragraph 20, that there is no obligation on the Department to notify likely recipients of change in the law. In support of this finding Deputy President Constance cited the decision of the Tribunal in Milroy. Adopting the reasoning in Milroy, as accepted in Dobson, I am satisfied that there was no obligation on the Secretary to inform Miss Taylor of the change in the legislation governing the lodgement of claims for FTB.
In considering whether Miss Taylor’s situation constitutes special circumstances I also note the decision in Dobson. In that case, Mr Dobson argued that he had not received notice of the change in the time limit to lodge a claim. Deputy President Constance referred to the Federal Court decisions in Beadle v Director-General of Social Security (1985) 7 ALD 670 and Dranichnikov v Centrelink (2003) FCAFC 133 and found that there were no special circumstances which justified the exercise of discretion to extend the time for lodging the claim, even though an extension of only 26 days was required.
Adopting the reasoning in Dobson, I am not satisfied that there are any special circumstances which justify the exercise of the Secretary’s discretion to extend the time for lodging Miss Taylor’s claim. I find that Miss Taylor’s claim for past period lump sum FTB for FY 2012/2013 was not submitted within the time provisions of section 10(2) of the Administration Act. As a result, the claim is not effective and is taken not to have been made. Accordingly, Miss Taylor is not qualified for FTB for FY 2012/2013.
DECISION
I set aside the reviewable decision. In substitution I decide that Miss Taylor’s lump sum past period claim for Family Tax Benefit for the financial year 2012/2013 is not effective and is taken not to have been made.
I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member [sgd]........................................................................
Administrative Assistant
Dated 9 February 2016
Date of hearing 1 December 2015 Advocate for the Applicant Mr Tim Noonan
Department of Human ServicesRespondent In person
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