Ward and Secretary, Department of Social Services (Social services second review)
[2017] AATA 1749
•11 October 2017
Ward and Secretary, Department of Social Services (Social services second review) [2017] AATA 1749 (11 October 2017)
Division:GENERAL DIVISION
File Number: 2017/1416
Re:Carlie Ward
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:11 October 2017
Place:Brisbane
The decision under review is set aside and, in substitution, decide that Ms Ward is entitled to FTB for the income year ended 30 June 2015.
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – family tax benefit – late lodgement of taxation return – “special circumstances” which prevented this occurring – decision under review set aside
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) s 58
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 5, 10, 13, 32A, 32B, 32C
CASES
Beadle and Director-General of Social Security (1984) 6 ALD 1
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Gammaldi and Secretary, Department of Social Services [2016] AATA 1028
Groth and Secretary Department of Social Security (1995) FCA 1708
Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443
Secretary, Department of Social Security v Hales [1997] FCA 1565; (1998) 82 FCR 154
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639
Secretary, Department of Social Security v O’Connell; Secretary, Department of Social Security v Sevel (1992) 38 FCR 540
REASONS FOR DECISION
Member D K Grigg
11 October 2017
INTRODUCTION & CLAIMS HISTORY
On 21 June 2016 Ms Ward applied for a family tax benefit (“FTB”) payment for the financial year ending 30 June 2015.[1] The next day the Department of Human Services (“Centrelink”) wrote to Ms Ward and requested that she provide an estimate of her and her partner’s income by 6 July 2016.[2]
[1] Exhibit 1, T documents, T5, pages 31 – 35, online Claim for FTB 2014 – 2015 dated 21 June 2016.
[2] Exhibit 1, T documents, T7, pages 37 – 38, Centrelink notice request for information dated 22 June 2016.
On 5 July 2016 Centrelink wrote to Ms Ward advising her that they were unable to complete the assessment of her FTP claim until the income details are confirmed. The letter went on to say that the tax returns of her and her partner needed to be lodged with the Australian Tax Office (“ATO”) before 30 June 2016.[3] This seems somewhat contrary given that the date by which she was told to lodge a tax return is preceded the date of this letter.
[3] Exhibit 1, T documents, T8, pages 39 – 40, Centrelink notice dated 5 July 2016.
In this instance, to be entitled to FTB, income tax returns for the relevant financial year need to be lodged by 30 June of the following year. That means Ms Ward needed to lodge her tax returns by 30 June 2016, but they were not lodged with the (“ATO”) until 20 July 2016.[4]
[4] Exhibit 1, T Documents, T6, page 36, Letter from Power Financial Group Accountants to Centrelink dated 30
September 2016.
Centrelink then advised Ms Ward that she was not eligible to receive the FTB for the financial year ended 30 June 2015 because her income had not been confirmed by 30 June 2016. The notice from Centrelink goes on to say that “if there are special circumstances that prevented you from lodging a tax return or telling us a tax return is not required to be lodged please call us”.[5]
[5] Exhibit 1, T documents, T 9, pages 41 – 42, Centrelink notice dated 21 July 2016.
Ms Ward then requested an extension of time to meet the necessary requirements to entitle her to FTB. However, Ms Ward’s application for an extension of time to meet the legislative timelines was rejected by Centrelink on 19 September 2016.[6]
[6] Exhibit 1, T documents, T10, pages 43 – 44, Centrelink notice dated 19 September 2016.
Ms Ward argues that special circumstances exist such that an extension of time to lodge her tax returns should have been granted.
Ms Ward sought a review of Centrelink’s original decision by an Authorised Review Officer (“ARO”).[7] The appeal to the ARO was unsuccessful on the grounds that no “special circumstances” existed to extend the lodgement period for her tax returns.[8]
[7] Exhibit 1, T documents, T 12, page 46, Letter from Centrelink to Ms Ward dated 12 October 2016.
[8] Exhibit 1, T Documents, T13, pages 47–52, Authorised Review Officer’s Decision and Notes dated 2 November
2016.
Ms Ward then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[9] The SSCSD rejected Ms Ward ’s claim and affirmed the ARO’s decision on 21 February 2017.[10]
[9] Exhibit 1, T Documents, T14, pages 53 – 54, application to SSCSD for review dated 13 November 2016.
[10] Exhibit 1, T Documents, T2, pages 5-8, SSCSD’s Decision and Reasons for Decision dated 21 February 2016.
Ms Ward has sought a review of the SSCSD’s decision by this Tribunal.[11]
[11] Exhibit 1, T Documents, T1, pages 1-4, Application for Review dated 14 March 2017.
ISSUES FOR DETERMINATION
The issue for determination is whether there were special circumstances that prevented Ms Ward and her husband from lodging their 2014-2015 income tax returns on or before 30 June 2016.
LEGISLATIVE REQUIREMENTS
Pursuant to the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“Administration Act”), a valid claim for FTB must be made in accordance with the Act: section 5(1), Administration Act.
If a claim is not effective, it is taken not to have been made: section 13(1), Administration Act.
Section 10(2)(b) of the Administration Act provides that a claim for FTB for a past period is only effective if the claim is made within:
(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.
Section 14A of the Administration Act provides:
14A Restriction on determining claim where income tax return not lodged
(1) If, in relation to a claim for payment of family tax benefit made by an individual:
(a) the claim is for payment of that benefit for a past period; and
(b) the past period falls in an income year (the past period income year) that is one of the 2 income years before the one in which the claim is made; and
(c) one or more of subsections (2) to (3A) apply;
then the claim is taken never to have been made.
(2) This subsection applies if:
(a) the claimant is required to lodge an income tax return for the past period income year; and
(b) the claimant has not lodged the return before the end of:
(i) the first income year after the past period 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 lodging the return before the end of that first income year.
(3) This subsection applies if:
(a) at the time the claim is made, a person is the claimant’s partner, and that person was the claimant’s partner at any time during the past period; and
(b) that person is required to lodge an income tax return for the past period income year; and
(c) that person has not lodged the return before the end of:
(i) the first income year after the past period 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 person from lodging the income tax return before the end of that first income year.
(3A) This subsection applies if:
(a) the claimant, or any other individual whose adjusted taxable income is relevant in working out the claimant’s entitlement to, or rate of, family tax benefit for the past period, is not required to lodge an income tax return for the past period income year; and
(b) the claimant does not notify the Secretary of the amount of the claimant’s adjusted taxable income for the past period income year before the end of:
(i) the first income year after the past period 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 that notification before the end of that first income year.
(4) The further period referred to in subparagraph (2)(b)(ii), (3)(c)(ii) or (3A)(b)(ii) must end no later than the end of the second income year after the past period income year.
Section 14A means that for an FTB claim to be effective, it must have been made and tax returns must have been lodged, within 12 months following the period to which the claim relates. Therefore, to claim FTB for the 2014-15 income period, Ms Ward must have lodged her claim and tax return by 30 June 2016. The exception to this is where the Secretary has granted an extension of time and there are special circumstances that prevent the person from lodging the income tax return before the end of that first income year.
Unless there are “special circumstances”, Ms Ward ’s FTB claim is not effective.
MS WARD’S TAX RETURNS WERE NOT LODGED IN TIME: SECTION 14A(2)(B)(I)
It is not in contention that Ms Ward and her husband did not lodge their income tax returns on time.
Section 14A(2)(b)(i) is not satisfied. Therefore, it is necessary to consider whether there are any “special circumstances that prevented” Ms Ward from lodging her tax returns before the end of 30 June 2016 under section 14A(2)(b)(ii).
ARE THERE SPECIAL CIRCUMSTANCES THAT PREVENTED MS WARD FROM LODGING HER TAX RETURNS BEFORE THE END OF 30 JUNE 2016 FOR THE PURPOSES OF SECTION 14A(2)(B)(II)?
What does “special circumstances” mean?
The Act does not define what constitutes “special circumstances”.
There has been considerable judicial consideration of the phrase in the context of other social security legislation, for example:
·“Special” denotes something different from the usual or ordinary: Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545 per Kiefel J (as she then was).
·French J (as he then was) said in in Secretary, Department of Social Security v Hales (1998) 82 FCR 154, at 162:
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion… It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words of the section. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.
·The Full Federal Court in Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 held, at 450:
Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.
·Jacobson J in Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639 explained the effect of the authorities as follows [emphasis added]:
[51] ...the phrase “special circumstances”, although lacking in precision, is sufficiently understood as including events or things that render the operation of the statue in a particular case as unfair, unintended or unjust. What is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists. Moreover, the circumstances of the case are not confined to matters that are external to the operation of the statutory scheme: see Smith per von Doussa J at 60, 61–62; Groth per Kiefel J at 545, Kertland v Secretary, Dept of Family and Community Services (1999) 95 FCR 64 per Merkel J at 71, 73; Kirkbright v Secretary, Dept of Family and Community Services (2000) 106 FCR 281 per Mansfield J at [22], [26]–[27] and [31]–[32]; see also Secretary to the Department of Family and Community Services v Allan (2001) 116 FCR 1 per Heerey J at [17].
The AAT has also considered the phrase and held that the interpretation in Beadle and Director-General of Social Security (1984) 6 ALD 1, at [12] (i.e. that the circumstances must be unusual, uncommon or exceptional), applies to the Act.[12]
[12]See Hunnibell and Secretary, Department and Community Services [2004] AATA 992, at [19]; Papps and Secretary, Department of Family and Community Services [2005] AATA 660, at [37].
In summary, the circumstances relied upon to be “special” must be unusual, different, uncommon or exceptional.[13]
[13]The core requirement for “special reasons” is that there be something “unusual or different”: French J in Boscolo v Secretary, Dept of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084,Do special circumstances exist?
Ms Ward wrote to Centrelink in October 2016 requesting to appeal the decision not to grant FTB and submitted that:[14]
(a)she had lodged her income declaration well within the allowed time frame;
(b)when she received the letter explaining that more information was required she contacted Centrelink immediately, knowing that there are strict guidelines for lodging the material, to find out what more was needed to complete her claim;
(c)the person she spoke to at Centrelink told her that there was nothing more required to complete the claim and that payment was in progress; and
(d)in relation to the late lodgement of the tax returns, she assumed her accountant had done it and attached a letter of support from her accountant.
[14] Exhibit 1, T documents, T11, page 45, letter from Ms Ward dated 4 October 2016.
In her application for review by this Tribunal Ms Ward submitted that the SSCSD’s decision was “biased and subjective” because it did not accept her contention that she contacted Centrelink and that they advised her incorrectly.[15]
[15] Exhibit 1, T Documents, T1, page 4, Application for Review dated 14 March 2017.
In a written statement[16] and written submissions[17] and at the hearing before me Ms Ward explained that:
·Ms Ward and her husband run a beef cattle property in central Queensland. The financial year of 2014/2015 was very difficult financially and emotionally due to prolonged periods of drought. Mrs Ward property was drought declared between July 2015 through to June 2016, the entire period during which a tax return was due. “This period is extremely demanding and made it impossible to keep our business affairs in complete order”. Her family’s “first priority at this time was animal welfare, providing adequate water and feed”. “The drought declarations made it impossible to effectively chase people and perform my usual office duties”.
·She had an agreement with her an accountant that the tax returns had to be lodged before 30 June so that the FTB claims could be processed. The tax information was provided to the accountant on 14 March 2016 and the accountant normally ensures that tax returns are lodged before he receives the signed forms back if time is of the essence, which it was in this situation. The tax returns were not lodged on time because of the work being passed to another accountant in the firm. Ms Ward assumed when she received the tax returns that this meant they had been lodged because of the understanding she had had previously with the accountant.
·Prior to 30 June Ms Ward received a letter from Centrelink stating that the application was not complete. Ms Ward believed everything was complete and as a result called Centrelink on 21 June to ask what was outstanding to ensure she could complete what needed doing before the due date. Ms Ward says she spoke to a woman at Centrelink who told her “I’m not sure why you received this letter, everything seems in order and your claim is awaiting payment”. Ms Ward says based on this conversation she believed there was nothing further to be done and assumed that the tax returns had been lodged. Ms Ward said if she’d been told her tax returns were outstanding she would have had ample time to follow-up with the accountant and ensure they were lodged.
[16] Exhibit 3, Statement of Ms Ward.
[17] Submission of Ms Ward received 5 October 2017.
Ms Ward submits that all those circumstances constitute “special circumstances” that prevented her from lodging the relevant tax returns by 30 June 2016.
The Secretary submits that no special circumstances exist and that therefore the discretion in section 14A(2)(b)(ii) cannot be invoked.
Lack of Awareness of Legislative Requirements
Before the ARO Ms Ward said she had been unaware of the time limits to lodge her tax returns.[18]
[18] Exhibit 1, T Documents, T13, page 49, ARO decision dated 2 November 2016.
However, this argument was not pressed at the hearing and is not consistent in any event with Ms Ward’s argument that both she and her accountant were aware of the date by which the tax returns had to be lodged.
Failure by the Accountant
Ms Ward lodged the FTB claim form on 21 June 2016. Ms Ward had 12 months to lodge her claim and could have done so any time after 30 June 2015. Although the FTB cannot be determined until a tax return has been lodged, the FTB claim form can still be lodged in the meantime. A tax return need only be lodged within the 12 months following the income year in which they received a payment.
The online FTB Claim form completed by Ms Ward asked if a tax return had been lodged. Ms Ward indicated on the form that both she, and her partner, had lodged a tax return and that the total taxable income for both of them was $0.00.
A letter from Ms Ward’s accountant, Ian Congram from Powers Financial Group, says that:[19]
·The tax returns for Ms Ward and her partner were completed mid-June 2016;
·Powers Financial Group sent the tax returns for execution to Ms Ward and her partner on 21 June 2016
·Ms Ward provided verbal instructions to lodge the income tax returns with the ATO but “due to a communication misunderstanding by a new staff member…the returns were not lodged by or on that day”
·Due to Ms Ward and her partner being away from their property, they were unable to send the executed tax returns to Powers Financial Group electronically so they mailed them.
·Ms Ward’s property is some distance from the nearest town and they only receive mail twice a week
·Powers Financial Group did not receive the mailed executed tax returns until 20 July 2016
·The tax returns were lodged by Powers Financial Group on 20 July 2016
[19] Exhibit 1, T Documents, T6, page 36, Letter from Powers Financial Group Accountants and Advisors to Centrelink
dated 30 September 2016.
The accountant’s letter confirms Ms Ward’s contention that the accounting firm had verbal instructions to lodge the tax returns prior to 30 June 2016 and that it was their error that resulted in them not being lodged until after 30 June 2016. The accountant does not confirm when they received the verbal instructions to lodge the income tax returns, however it is clear that they were aware they were to be lodged by 30 June 2016.
It is also understandable, therefore, why Ms Ward indicated on her FTB claim form that her, and her partner’s, tax returns had been lodged.
The issue is whether the failure of Ms Ward’s accountant to lodge the tax returns is “uncommon”, “out of the ordinary” or constitutes an “exceptional” circumstance.
The Guide provides examples of reasons which would not generally meet special circumstances criteria including that a:[20]
Failure by an accountant or tax agent to lodge a tax return within the lodgement period… will not ordinarily constitute special circumstances.
[20] Family Assistance Guide, para 6.4.3
Brennan J explained the relevance of an adopted policy to decision-making in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640:[21]
Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.
[21]Singh v Minister for Immigration and Citizenship (2012) 199 FCR 404, at [43] .See also Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640
The Full Federal Court in Hneidi And Others v Minister For Immigration And Citizenship (2010) 265 ALR 292 set out the four propositions which emerge from Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 (“Drake”) when considering the entitlement of an administrative decision-maker to take into account a statement of governmental policy:
[41]…The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account “government policy”. Thus, where the tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
[42] Second, in the absence of a specific statutory provision (which would no doubt be unusual) the tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
[43] Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the tribunal. That is a matter for the tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
[44] Fourth, the borderline between cases in which the tribunal has abdicated its functions to those of an unthinking application of “government or ministerial policy” to the facts may sometimes be blurred. But where the tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion.
In Drake, Brennan J (as President of the AAT) noted that:
(a)“An argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application”.[22]
(b)“The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function”.[23]
(c)Further, consistency with comparable cases and decisions is “[o]one of the factors to be considered in arriving at the preferable decision… and one of the most useful aids in achieving consistency is a guiding policy”.[24]
[22] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
[23] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
[24] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 643.
The Secretary also referred me to numerous other Tribunal decisions where it has been found that an accountant’s failure to lodge tax returns within time was found to not constitute a “special circumstances” for the purposes of the Act.[25] I also note the decision of Secretary, Department of Social Services and Willersdorf [2016] AATA 535 (“Willersdorf”). In Willersdorf Senior Member P Britten-Jones said in his view the cases:
[54] … do not establish that a failure to lodge an income tax return by the relevant date caused by an accountant cannot be regarded as “special circumstances” as that phrase is understood in the context of s 32D(2)(b) of the Administration Act. It is necessary to look at all the circumstances of the applicant so as to determine whether there are special circumstances that prevented the applicant from lodging the return before the end of the first income year. The discretion afforded by s 32D(2)(b) ought not be fettered beyond the requirement that the requisite special circumstances be established. Once satisfied of that precondition, the decision maker may exercise his or her discretion.
[25] Secretary, Department of Social Services and Cannon [2015] AATA 1028; Andre and
Secretary, Department of Social Services [2016] AATA 205; Fedigan and Secretary, Department of Social Services [2016] AATA 211; Elrington and Secretary, Department of Social Services [2016] AATA 169; Secretary, Department of Social Services and Bleeker [2016] AATA 290; Secretary, Department of Social Services and Irvine [2016] AATA 306.
While I agree that the failure of an accountant to perform his/her duties may not give rise to special circumstances on its own, I agree with Senior Member P Britten-Jones that “all the circumstances” which prevented an applicant from lodging their returns need to be considered.
The other circumstances that occurred here are in relation to the alleged representations made to Ms Ward by Centrelink.
There is no corroborating evidence that someone at Centrelink told Ms Ward that she had nothing further to do and that her claim is being processed.
However, Centrelink records of communications with Ms Ward indicate that:
(a)Ms Ward contacted Centrelink on 21 June 2016 regarding her claim for FTB and said she would “like to know if reco has been completed for 2014/15 fin year since lodging tax return 2 weeks ago”; [26]
(b)as at 21 June 2016 FTB was assessed and awaiting actual income from ATO; [27]
(c)on 22 June 2016 Centrelink sent a letter to Ms Ward providing information that she needed to provide her tax returns; [28]
(d)Ms Ward did telephone Centrelink on 19 September 2016, after she became aware that her FTB was not granted, and stated that she had contacted Centrelink and “was told claim was processing then did not hear more about this” and that she was “going to speak to accountant to confirm lodgement dates and income confirmation dates”, that she “was advised when she called that all docs were received and did not mention tax return needed to be lodged before June 30 – she could have done something about it then” and that “she was unaware that her accountant had not lodged a tax returns within the timeframe”;[29]
[26] Exhibit 1, T documents, T 16, pages 60, 67, Centrelink contact records.
[27] Exhibit 1, T documents, T 16, pages 68, Centrelink contact records.
[28] Exhibit 1, T documents, T 16, pages 67, Centrelink contact records.
[29] Exhibit 1, T documents, T 16, pages 67, 70, 74Centrelink contact records.
The Centrelink records, at the relevant time, confirm that Ms Ward:
(a)did contact Centrelink on 21 June 2016 regarding her FTB claim;
(b)was clearly of the understanding that all necessary documents had been received by Centrelink as at 30 June 2016;
(c)believed the tax returns had been lodged prior to 30 June 2016; and
(d)was not advised by Centrelink by telephone prior to 30 June 2016 that Centrelink had not received the tax returns.
I recognise that Centrelink did send a letter on 22 June 2016 advising Ms Ward that they had not received her tax returns. Ms Ward says she does not recall receiving that letter and if she did she would have thought nothing of it based on the prior telephone call she had with Centrelink. Further Ms Ward notes, that because she lives on a remote property she only receives mail on average twice per week. The Australia Post website records that regular letters can take up to 6 business days to be delivered[30] in which case the 22 June 2016 letter may have arrived by 30 June 2016. However, it is not clear that this is the date by which Ms Ward would have received the letter given her rural location and there is no way of confirming this. Further, even if she had received this letter on 30 June 2016, it may not have provided her with enough time to comply. However, there is authority that “Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment”.[31]
[30] Secretary's submissions dated 25 September 2017, para 9, Attachment A.
[31]See Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011]I find that the Centrelink records corroborate Ms Ward’s evidence and see no reason to doubt Ms Ward’s recollection of the 21 June 2016 telephone conversation.
The question is whether it was reasonable for Ms Ward to rely on the representations made by the Centrelink officer on 21 June 2016 that nothing further was required for Centrelink to process FTB claim and whether this representation is what prevented Ms Ward from filing her tax returns in time.
I accept that Ms Ward assumed, based on this conversation, that nothing further was required. I also find that it is reasonable for Ms Ward to have relied on the representation. I also find that the Centrelink records are corroborating evidence that Ms Ward was under a misapprehension that her tax returns had been lodged which further added to her belief that nothing further was required to be done. As referred to above, the accountants have confirmed that they had instructions from Ms Ward to lodge those tax returns prior to 30 June 2016. Given that Ms Ward had been told on 21 June 2016 that there was nothing further to be done, I fail to see why Ms Ward should be expected to have continued to contact her accountant.
I note the Full Federal Court decision in Secretary, Department of Social Security v O’Connell; Secretary, Department of Social Security v Sevel (1992) 38 FCR 540 where the Court noted that (at p 546):
Given the evident parliamentary intention to protect the interests of dependent children, an interpretation of the Act leading to a loss of allowance by qualified people should be adopted only in the clearest of cases.
DECISION
I accept Ms Ward’s evidence and find that the combination of the accountants’ failure, Centrelink’s representation, Ms Ward’s remote location and the issues surrounding the drought, are special circumstances which prevented Ms Ward from lodging her tax returns before 30 June 2016.
I find that special circumstances exist such that the time for the lodgement of her tax returns should be extended pursuant to section 14A(b)(ii) of the Administration Act.
The decision under review is set aside and, in substitution, decide that Ms Ward is entitled to FTB for the income year ended 30 June 2015.
I certify that the preceding 53 (fifty - three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
...................................[Sgd].....................................
Associate
Dated: 11 October 2017
Date of hearing: 14 September 2017 Date final submissions received: 5 October 2017 Applicant: By Telephone Solicitors for the Respondent: Ms Julia Driver
Department of Human Services
at [37].
AATA 488, at [16]; Ivor Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451, at [23]; Brian Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115, at [17];; Barnard and Secretary, Department of Social Services [2016] AATA 436, at [47]; Scott v Secretary, Department of Social Security [1999] FCA 1774, and on appeal Scott and Another v Secretary, Department of Social Security [2000] FCA 1241.
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