Willersdorf; Secretary, Department of Social Services and (Social services second review) - [2016] AATA 535

Willersdorf; Secretary, Department of Social Services and (Social services second review) [2016] AATA 535 (27 July 2016)

Division

General Division

File Number

2015/2663

Re

Secretary, Department of Social Services

APPLICANT

And

Christine Willersdorf

RESPONDENT

DECISION

Tribunal
Senior Member P Britten-Jones

Date 27 July 2016

Place Adelaide
The Tribunal affirms the decision made by the Social Security Appeals Tribunal on 27 April 2015.
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Senior Member P Britten-Jones
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Family Tax Benefit – claim lodged out of time by accountant – whether Tribunal should exercise discretion to allow claim out of time – whether "special circumstances" existed – decision under review is affirmed.
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth), s 21
A New Tax System (Family Assistance)(Administration) Act 1999 (Cth), s 32D
Family Assistance and other Legislation Amendment Act 2013 (Cth)
CASES
Re Milroy and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488
Scott v Secretary, Department of Social Security (2000) 65 ALD 79, [2000] FCA 1241
Secretary, Department of Social Services and Field [2015] AATA 903
Wilson v Director-General of Social Services [1981] AATA 88
Secretary, Department of Social Services and De Jager [2015] AATA 828
Secretary, Department of Social Security v O'Connell; Secretary, Department of Social Security v Sevel (1992) 38 FCR 540
Secretary, Department of Social Services and Cannon [2015] AATA 1028
Secretary, Department of Social Services and Elrington [2016] AATA 169
Secretary, Department of Social Services and Bleeker [2016] AATA 290
Secretary, Department of Social Services and Johnson [2016] AATA 304
Secretary, Department of Social Services and Irvine [2016] AATA 306
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Hooker and Secretary, Department of Social Services [2015] AATA 732
Dranichnikov v Centrelink [2003] FCAFC 133 (2003) 75 ALD 138
Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth and Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
REASONS FOR DECISION
Senior Member P Britten-Jones
27 July 2016

This is an application for review of a decision made by the (former) Social Security Appeals Tribunal (SSAT) on 27 April 2015 to set aside the decision made by an authorised review officer of the Department of Human Services (the Department) dated 10 February 2015. The respondent’s claim for Family Tax Benefit (FTB) supplement and top up payments for the 2012/2013 financial year was disallowed by Centrelink and on review by an authorised review officer. On appeal the SSAT allowed the respondent’s claim. The Secretary now seeks a review of the decision of the SSAT.
The Issue
The issue to be decided in this application is whether Ms Willersdorf is entitled to an extension of the period in which to lodge her tax return so as to obtain the FTB supplement and top up payment to which she would otherwise be entitled.
It is not in dispute that Ms Willersdorf lodged her tax return late. Ms Willersdorf needs to satisfy the Tribunal that special circumstances exist which prevented her from lodging the tax return within the required period.
Background facts
Most of the facts are not in contention. Ms Willersdorf gave her evidence in a candid and forthright manner. She made appropriate concessions when required. At times she became emotional because of the obvious strain these proceedings and her personal circumstances have had on her but this did not cause her to embellish her story.
I make the following findings based on the documentary evidence and the oral testimony of Ms Willersdorf.
Ms Willersdorf is a single parent. She raised her three children after her husband left to work in China soon after the birth of the third child. Ms Willersdorf relied upon her mother to help her with the children during some years in Casterton. Her sister helped as well. Ms Willersdorf was also very close to her brother.
Ms Willersdorf went back to work in about 1998 when her youngest child was 18 months old. At some point the family moved to Mount Gambier. In 2008, Ms Willersdorf and her children moved to Murray Bridge where she purchased a house in Parkview Drive. That house was sold in March 2014 and the family moved to a new address in Murray Bridge.
Ms Willersdorf is a qualified life coach who operates a business from Murray Bridge delivering accredited and non-accredited personal development and motivational training to companies. She often works with long term youth unemployed. She has worked with students at independent learning centres throughout South Australia, including Mount Gambier and Murray Bridge. She is currently chairperson and director of Elicit Success Pty Ltd which operates as a training company. She has carried out the majority of the administrative duties involved in the business by herself but has received some help from her daughter.
For 15 years Ms Willersdorf used the same accountant, Susanne Smith from Susanne Smith & Associates, accountants, who are based in Mount Gambier. Ms Willersdorf gave evidence that she trusted her explicitly.
During the period 1 July 2012 to 30 June 2013 Ms Willersdorf was receiving FTB from the applicant on a fortnightly basis in respect of her youngest daughter. Ms Willersdorf received $5,252.31 at a rate of approximately $202.00 per fortnight during the 2012/2013 year. She stopped receiving these fortnightly payments in December 2013 when her daughter left school.
Facts relating to the accountant
On 13 December 2013 Ms Willersdorf met with Ms Smith and provided her with all the information and documentation needed to prepare her personal and company tax returns for the year ending 30 June 2013. Included in that paperwork was material relating to a proposed change in the structure of the business, namely from trading as a sole trader to trading through a company.
On 31 March 2014 Ms Willersdorf followed up Ms Smith by email asking “is there anything I need to do in regard to my personal/sole trader tax return?” Ms Smith responded by email saying she had no issues with her tax but she had not finished yet.
Ms Willersdorf contacted Ms Smith again by email on 10 April 2014 asking if there was anything further required from her. Ms Smith responded by telephone saying that nothing further was required.
On 12 June 2014 Ms Willersdorf sent a further email to Ms Smith enclosing Director’s Minutes for her approval. That email referred to a discussion held “a few weeks ago”. Ms Willersdorf asked what her income was in 2012/2013. She finished the letter by asking “also when will it be lodged.”
Ms Smith responded by email on 16 June 2014 advising that the income figures will arrive this week and that “also I will speak to you re: next step on minutes. Speak soon.” That was the last communication before the end of the financial year on 30 June 2014.
Ms Willersdorf was not concerned by what Ms Smith was telling her in those emails. She trusted her accountant to do her tax on time. Ms Willersdorf followed up Ms Smith because she was expecting “a refund” or some further payment from Centrelink. Ms Willersdorf had deliberately overestimated her income during the 2012/2013 year and she expected to receive a supplementary payment as a “top up” with respect to her FTB. She knew she would not get her “top up” until her tax returns were lodged.
The expected refund was the motivating factor which caused her to continue to follow up Ms Smith.
Ms Smith did not complete the tax return for Ms Willersdorf until about 7 August 2014. It was not lodged until 14 August 2014.
On 4 July 2014 the Family Assistance Office of Centrelink determined that, applying the “reconciliation process”, Ms Willersdorf was entitled to a further FTB payment of $4,204.84 for the 2012/2013 year. Centrelink declined to pay the entitlement.
Ms Smith confirmed by letter that the income tax return for Ms Willersdorf for the year ending 30 June 2013 was lodged late by her and that it was no fault of Ms Willersdorf as she had supplied the necessary documentation needed to complete the lodgement on time.
Notification by Centrelink of the 30 June 2014 deadline
Centrelink sent a letter to Ms Willersdorf dated 17 March 2014 addressed to her Parkview Drive address. That letter made it very clear that “important action” was “required by 30 June 2014” and that “you will not be eligible for any … family tax benefit supplements” if the tax return is not lodged by 30 June 2014. The letter explained that “you now only have one year instead of two years to lodge a tax return, or to tell us if you are not required to lodge a tax return in order to receive your full family tax benefit entitlements.”
The date that letter would have been received coincides with the date that Ms Willersdorf moved out of the house in Parkview Drive. This is confirmed by a letter from the purchasers of that house saying that settlement was on 21 March 2014 and that:
“During the first few weeks we received some mail that we believe belonged to the previous owner, some being in personal names, others in a business name. As we had no forwarding address, we sent them back ‘return to sender’.”
Ms Willersdorf had arranged a redirection service with the post office and a forwarding address to a post office box. Ms Willersdorf says she never got the letter from Centrelink dated 17 March 2014. There is no record from Centrelink that its letter was returned to sender.
Ms Willersdorf did not advise Centrelink about her change of address until much later in about November 2014.
I find that Ms Willersdorf did not receive the letter dated 17 March 2014 from Centrelink and therefore did not receive notification of the reduction from two years to one year for the lodgement of the tax returns. It was an unusual coincidence that she moved out of the house at the very time that the letter would have been received. I consider that to be a sufficient explanation for Ms Willersdorf not having received the letter.
Ms Willersdorf said in evidence, and I find, that she did not realise that the tax returns had to be lodged within one year, namely by 30 June 2014 in order to get the “top up”. Instead, she thought that she had two years to lodge them. She did not realise that the two year period had been changed to one year. She only found out the correct position in July 2014 when it was too late.
I accept the evidence in the letter from the purchasers of the house that any mail to the “previous owner” was sent back marked “return to sender”. It is not known what happened to the letter after that. It is also not known why the letter was not re-directed to the post office box address set up by Ms Willersdorf at the time of the move. Although Ms Willersdorf could have done more and informed Centrelink of her changed address, she did take the step of arranging the redirection to the new post office box address so I make no criticism of Ms Willersdorf in this regard.
The next relevant evidence is the text message that was sent to Ms Willersdorf on 26 May 2014. The message said:
“Reminder – lodge your 2012–13 tax return/s or tell Centrelink if exempt from lodging by 30 June 2014 to receive your full family assistance entitlements. If exempt go to Human Services website and search for …”
A text message by its very nature cannot be expected to provide as much information as a letter and by the same token it cannot be expected to have the same impact as a letter on the recipient. The language of the text is not as strident as the letter. The message is expressed as a “reminder” and, unlike the letter, it does not expressly state the consequences for failing to lodge by 30 June 2014. Further, it is not clear whether the 30 June 2014 date qualifies, only the need to tell Centrelink if exempt from lodging or whether it also qualifies the need to lodge the 2012/13 tax return.
Ms Willersdorf said that upon reading the text she did not realise that she would not receive her “top up” if the tax returns were not lodged by 30 June 2014. She said she did not panic or take much notice of the text. In cross-examination she said she could not remember her thoughts at that time. She admitted that she did not pay attention to it.
I find that Ms Willersdorf received the text but given its rather benign and unclear wording she did not consider she needed to take action by 30 June 2014. I do not place much weight on the reference to the website in the text message because it is preceded by the words “if exempt go to” which suggest that you would only need to look at the website if you were exempt from lodging a tax return.
I make no criticism of Centrelink for the form of the text because it was no doubt only intended as a supplementary reminder to the very detailed and clear letter sent two months earlier. In the circumstances of Ms Willersdorf not receiving the March letter I make no criticism of her failure to take action in response to the text message.
Further facts relevant to special circumstances
Ms Willersdorf gave evidence of the circumstances in her life during the 2012/13 year. It was a tumultuous year for her:
(a)She was extremely busy with her work. She was working up to 60 to 70 hours per week because, as she said, when you have your own business you make hay while the sun shines. Her tax returns bear this out. In 2013 her taxable income was $6,013.00. In 2014 her taxable income was $62,644.00. She ceased trading as a sole trader and began trading through her company which required some accounting assistance.
(b)Her brother passed away suddenly in December 2013 leaving behind a wife and 11 children. This had a dramatic effect on Ms Willersdorf and her family.
(c)She moved house in March 2014.
(d)She became estranged from her sisters. This came to a head in April 2014.
(e)In June 2014 Ms Willersdorf had serious problems with a contract trainer who sought to undermine her. There followed a very bitter dispute which caused her a great deal of stress and anxiety at work during the month of June 2014.
(f)Midway through June 2014, Ms Willersdorf became aware that the majority of her business would become obsolete due to governmental changes by which TAFE took over much of the training services previously provided by registered training organisations. Since then her business has been slow.
The cumulative effect of these further circumstances, create the context in which the tax returns were not lodged. At the very least they establish that Ms Willersdorf had good reason to be distracted from running her business and complying with all the administrative requirements associated with running your own business. I have no doubt from the evidence given by Ms Willersdorf that she was under an unusually significant amount of pressure and strain that reached its peak in the period leading up to 30 June 2014.
THE LEGISLATIVE FRAMEWORK
The legislation that applies to the calculation of Ms Willersdorf’s family tax benefit is the A New Tax System (Family Assistance) Act, 1999 (the Act) and the A New Tax System (Family Assistance) (Administration) Act, 1999 (the Administration Act).
Ms Willersdorf meets the eligibility requirements for the payment of FTB under s 21 of the Act. She was paid instalments of FTB during the 2012/2013 income year. Section 32B of the Administration Act enables there to be a reconciliation of the entitlement to FTB for that year once the actual income in that year has been determined. This process of reconciliation may be made if s 32D of the Administration Act applies to the individual. Section 32D of the Administration Act applies to Ms Willersdorf as a single parent who was required to lodge an income tax return for the 2012/2013 income year.
Section 32D of the Administration Act was amended by the Family Assistance and other Legislation Amendment Act, 2013 (Cth) and came into force on 28 June 2013. The effect of the provision is to allow her FTB payment to be reconciled so long as her income tax return for the 2012/2013 income year was lodged on or before 30 June 2014 or up to one year later if there are special circumstances that prevented Ms Willersdorf from lodging her return by 30 June 2014. The amendment effectively reduced the time period for lodging the income tax return from two years to one year after the end of the relevant income year.
Section 32D of the Administration Act provides:
“Relevant reconciliation time – individual not member of a couple, income tax return lodged within 2 years
(1) This section applies to the first individual for a same-rate benefit period if:
(a)the first individual was not a member of a couple at any time during the same-rate benefit period; and
(b)the first individual is or was required to lodge an income tax return for the relevant income year; and
(c)clause 38L of Schedule 1 to the Family Assistance Act did not apply to the first individual at any time during the same-rate benefit period.
(2)The relevant reconciliation time is the time when an assessment is made under the Income Tax Assessment Act 1936 of the first individual’s taxable income for the relevant income year, so long as the first individual’s income tax return for the relevant income year was lodged before the end of:
(a)the first income year after the relevant income year; or
(b)such further period (if any) as the Secretary allows, if the Secretary is satisfied that there are special circumstances that prevented the first individual from lodging the return before the end of that first income year.
(3)The further period referred to in paragraph (2)(b) must end no later than the end of the second income year after the relevant income year.”
Consideration of notification given by Centrelink
I have already found that the Centrelink letter was not received by Ms Willersdorf and that the text message did not, on its own, give clear notice of the change in legislation.
There is no obligation to give notice to persons who may be entitled to a social security payment: Re Milroy and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 488 at [19] relying on Scott v Secretary, Department of Social Security (2000) 65 ALD 79; [2000] FCA 1241. See also Secretary Department of Social Services and Field [2015] AATA 903 at [28]. A lack of awareness of legislation effecting a change to a time limit does not, without more, amount to special circumstances: Wilson v Director-General of Social Services [1981] AATA 88 at [28].
It may have been relevant to the exercise of my discretion if Ms Willersdorf had received notice of the change in time limit but had taken no action to lodge before the advised time limit. However I do not consider it relevant to the question of special circumstances if no effective notice was received by Ms Willersdorf.
Failure to lodge due to accountant error
It would appear from a consideration of some other decisions of the Tribunal that numerous persons have been caught out by the change to the timeframe in which to take action to enable reconciliation of FTB payments to be reconciled. In particular, there have been numerous cases where the fault for late lodgement of the income tax return lies with the person’s accountant. All of the cases of which I have been made aware found that the late lodgement by the accountant did not constitute the requisite special circumstances in s 32D(2)(b) of the Administration Act. I am not aware of any decision of the Federal Court or by the Tribunal presided over by a presidential member in which the issue of late lodgement by an accountant has been considered.

The decisions involving accountants to which I have been helpfully referred by the representative of the Department, are:
·Cannon; Secretary, Department of Social Services and (Social Services Second Review) [2015] AATA 1028;
·Elrington; Secretary, Department of Social Services and (Social Services Second Review) [2016] AATA 169;
·Bleeker; Secretary, Department of Social Services and (Social Services Second Review) [2016] AATA 290;
·Johnson; Secretary, Department of Social Services and (Social Services Second Review) [2016] AATA 304; and
·Irvine; Secretary, Department of Social Services and (Social Services Second Review) [2016] AATA 306.
I set out below relevant passages from these decisions which in my view are distinguishable on their facts from this case.
The decision of Cannon considered the meaning of “special circumstances” found in s 32C(1)(c)(iii) which is in similar terms to s 32D(2)(b) of the Administration Act. In that case Ms Cannon’s partner had signed and posted his return to the accountant’s office on 26 June 2014 and due to administrative error it was filed in the wrong place and not duly lodged by 30 June 2014. Deputy President Constance concluded at [23]:
“I do not consider that a mistake by Mr Turner’s accountants can be properly regarded as a special circumstance to entitle Ms Cannon to receive the adjustment to the Family Tax Benefit. The Accountants have unequivocally admitted responsibility for their error and Ms Cannon may have a means of redress against them.”
In the decision of Elrington, Deputy President Forgie concluded with respect to special circumstances:
“[27] I find that Mr Elrington went to his accountants’ offices in early May 2014 with information so that they could prepare his income tax return for the year ended 30 June 2013. The accountants moved their offices to an adjoining office in the ensuing months and did not lodge his return before 30 June 2014. I accept that Mr Elrington gave the accountants all of the information they needed and that he told them that the return had to be lodged by 30 June 2014 for FTB purposes. While I also accept that his accountants’ oversight in lodging his income tax return was due to their moving from one location to another, I do not accept that their failure to lodge it was beyond his control. Mr Elrington knew that it was a crucial that he lodge his income tax return by 30 June 2014. The Department had sent him a lengthy note emphasising the necessity of doing so. It had sent that note on 21 March 2014 and followed it up with an SMS dated 30 May 2014. Mr Elrington has not suggested that he did not receive those notices.
[28] …Mr Elrington has not said that he contacted his accountants as 30 June 2014 drew near to enquire about whether they had lodged his income tax return. Given the notices he had been given by the Department as to the consequences of his not lodging his income tax return by 30 June 2014, Mr Elrington could, I find, be expected to have contacted his accountants to check whether his income tax return had been lodged. As he did not, I find, there is nothing in Mr Elrington’s circumstances that enable them to be characterised as special circumstances.”
In the decision of Bleeker, Deputy President McDermott said relevantly:
“[17] There is evidence that on 13 June 2014 the respondent and her partner attended the office of their tax agent …However, it was not until 6 August 2014 that Growth Focus Accounting lodged the income tax returns. The explanation provided by Growth Focus Accounting was that the returns were lodged late because of an upgrade in software systems.
…
[19] As I have earlier mentioned the respondent had been sent a letter on 21 March 2014 and an email on 30 May 2014 to advise her of the change to reconciliation procedures. The respondent, who has asked for this application to be heard in her absence, has not contended that she did not receive the letter and email.
…
[21] I do not find the circumstances of the respondent are special circumstances. …”
In the decision of Johnson, Deputy President McCabe considered a situation where the applicant’s accountant had been engaged in about April 2014 but had abandoned his office in extraordinary circumstances before the end of June 2014. The Tribunal concluded at [11]:
“In this case, I take into account the fact Mr Johnson clearly knew (or should have known) of his obligation to file his tax returns before 30 June 2014. There is no dispute he received notices to that effect from the Secretary, and ignorance of the law would not ordinarily be an excuse in any event. I also take into account the fact Mr Johnson’s accountants were aware of the obligations. Most importantly, though, I am conscious of the fact Mr Johnson was not actually prevented from filing the return by the admittedly unusual behaviour of his accountant. The evidence suggests Mr Johnson was not aware of the bad behaviour while it was going on. If he had tried to contact the accountant before the deadline to ask about the fate of his tax returns and then been prevented from making other arrangements – because the firm would not respond to his calls or release the documents he needed to take his business elsewhere or complete the returns himself – that may have amounted to special circumstances that prevented him from filing the return in a timely way. …”
In the decision of Irvine, there was evidence that the respondent and his partner had submitted their tax details with their tax agent in March 2014 but due to an internal book keeping error the income tax returns were not lodged by 30 June 2014. Deputy President McDermott concluded:
“[20]…I do not consider that there is any reason why the failure of the tax agent to lodge the income tax returns on time can fairly be regarded as “special circumstances” when the tax agent has not provided any explanation of why the income tax returns were not lodged on time. ..
[21] The respondent may have a means of redress against the tax agent for the loss that he has sustained. …
[22] I have earlier mentioned the respondent had been sent two letters on 10 February 2014 and on 18 March 2014 to advise him of the changed reconciliation procedures. The respondent accepted that he was aware of the requirement to lodge his and his partner’s income tax returns by 30 June 2014. …”
Reference was made in some of the above decisions to an internal Centrelink policy guide which provides:
“…an extension must not be granted if a tax agent/accountant advises they were the cause of the late lodgement of tax returns even if the customer provided financial records before 30 June. Tax agents/accountants were advised of changes to lodgement periods.”
While it may be appropriate to have regard to policy, I consider that the statement of policy does not accurately reflect the relevant legislation. I do not give any weight to that internal Centrelink policy because I disagree with it. In Drake v Minister for Immigration & Ethnic Affairs (1979) 2 ALD 60 at [70], Bowen CJ and Deane J remarked:
“…the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”
In this regard I agree with what was said by Deputy President McCabe in Johnson at [10] and what was said by Deputy President McDermott in Irvine at [25].
It is apparent from those cases that an applicant must do more than merely establish fault on their accountant in order to establish special circumstances.
It is my view that the abovementioned cases 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.
I am conscious of what fell from President Brennan J in Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [639]:
“Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”
I do not consider that an approach which maintains the discretion afforded by s 32D(2)(b) is inconsistent with the abovementioned decisions dealing with late lodgement by accountants.
Are there special circumstances that prevented lodgement?
I am satisfied that there are special circumstances that prevented Ms Willersdorf from lodging her tax return before the end of 30 June 2014.
In satisfying myself that there are special circumstances in terms of s 32D(2)(b), I have taken an approach based on the evident parliamentary intention of the Administration Act to protect the interests of dependent children such that interpretation of the Act leading to a loss of an allowance by qualified people should be adopted only in the clearest of cases: Secretary, Department of Social Security v O’Connell; Secretary, Department of Social Security v Sevel [1992] FCA 559; (1992) 38 FCR 540 at 546 referred to in Secretary, Department of Social Services and De Jager [2015] AATA 828 at [35]. I do not consider this to be a clear case requiring Ms Willersdorf to lose her entitlement to the FTB applicable to her level of actual income.
In Re Hooker and Secretary Department of Social Services [2015] AATA 732 the phrase “special circumstances” in similar legislation was considered by Senior Member Toohey:
“[14] In order for the time for making a claim to be extended, the Secretary (and so the Tribunal) must be satisfied, firstly that circumstances existed that were special and, secondly, that those special circumstances prevented the claimant from making his or her claim within time.
…
[19] In the case of a late claim for FTB, the special circumstances must prevent a person from making a claim on time. That is a more stringent, two-part test.”
The expression “special circumstances” is not defined in the Administration Act but it has been extensively considered by the Federal Court and the Tribunal in the Social Security and Family Assistance law context. See for example Dranichnikov v Centrelink [2003] FCAFC 133 at [66]; Beadle and Director-General of Social Security (1984) 6 ALD 1 at [2]; Groth and Secretary Department of Social Security [1995] FCA 1708 at [12] and Angelakos v Secretary Department of Employment and Workplace Relations [2007] FCA 25 at [33]. Those cases establish that “special circumstances” is incapable of precise or exhaustive definition. The words indicate the fact that there must be something that distinguishes the case from the ordinary or usual case.
The distinguishing features of this case are:
·Ms Willersdorf provided her accountant with all necessary material to carry out the tax return in December 2013 which was more than 6 months in advance of the required date for lodgement on 30 June 2014;
·Ms Willersdorf had a long term relationship with her accountant who, I infer, was familiar with her business affairs and taxation requirements;
·It was not a simple tax return because of the significant increase in revenue generated in 2012/2013 and the change from trading as a sole trader to trading through a company;
·There were a number of emails from Ms Willersdorf following up the lodgement of the tax returns namely on 31 March, 10 April and 12 June 2014;
·Ms Willersdorf and her family moved residence at the very time that the Centrelink letter advising of the changed deadline would have been received and consequently Ms Willersdorf did not receive that letter;
·Ms Willersdorf’s brother passed away suddenly in December 2013 which had a dramatic effect on the family into 2014;
·Ms Willersdorf’s estrangement from her sisters in about April 2014;
·The situation at Ms Willersdorf’s work in June 2014 involving the termination of a contract trainer; and
·The failure by Ms Willersdorf’s accountant to lodge the tax returns by 30 June 2014.
These factors combined to create what would be considered the perfect storm in the period leading up to 30 June 2014. None of the above factors on their own would necessarily constitute special circumstances but in combination and viewed as a whole they do constitute special circumstances so as to make the exercise of the discretion appropriate in this instance.
The second part of the test required by s 32D is that the special circumstances must prevent the claimant from making a claim within time. In my view, s 32D requires there to be a strong causative relationship between the special circumstances and the failure to lodge the tax return by the due date. The second part of that test is made out because Ms Willersdorf had provided her material well in advance of the time for the tax return to be lodged and she was entitled to trust her accountant to lodge the tax return on time. Ms Willersdorf did not simply provide her materials to her accountant and do nothing more but instead she regularly followed up her accountant in the period leading up to the deadline of 30 June 2014. In all of the circumstances, including her long term relationship with her accountant and her particularly complex accounting requirements in that financial year, she could not have been expected to do any more. The combined effect of the special circumstances operated so as to prevent her from lodging within time.
I note that Ms Willersdorf’s conduct in providing all necessary material at least 6 months before the due date and regularly following up her accountant distinguishes this case from the abovementioned cases dealing with accountants where the material was often provided close to the deadline and there was no or little follow up.
DECISION
I affirm the decision made by the Social Security Appeals Tribunal on 27 April 2015.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P A Britten-Jones
........................[Sgd]................................................
Administrative Assistant
Dated 27 July 2016

Date(s) of hearing 3 June 2016

Advocate for the Applicant Mr C Visser

Solicitors for the Applicant Dept of Human Services

Advocate for the Respondent Ms M Riley

Solicitors for the Respondent Welfare Rights Centre (SA) Inc

Division	General Division
File Number	2015/2663
Re	Secretary, Department of Social Services
APPLICANT
And	Christine Willersdorf
RESPONDENT

Tribunal	Senior Member P Britten-Jones
Date	27 July 2016
Place	Adelaide

Date(s) of hearing	3 June 2016
Advocate for the Applicant	Mr C Visser
Solicitors for the Applicant	Dept of Human Services
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc