Weiss and Secretary, Department of Social Services (Social services second review) [2018] AATA 1280 (11 May 2018)

Last Updated: 17 May 2018

Weiss and Secretary, Department of Social Services (Social services second review) [2018] AATA 1280 (11 May 2018)

Division: GENERAL DIVISION

File Number: 2017/2376

Re: Bernadette Weiss

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Senior Member B J Illingworth

Date: 11 May 2018

Place: Adelaide

The Tribunal affirms the decision under review.

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Senior Member B J Illingworth

CATCHWORDS

SOCIAL SECURITY – Family tax benefit – Claim for payment of family tax benefit for a past period – Whether special circumstances exist to extend the claim period – Special circumstances found not to exist – Decision under review affirmed.

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999, ss 5, 10(2), 13

CASES

Beadle and Director-General of Social Security [1984] AATA 176; (1984) 6 ALD 1

Dranichnikov v Centrelink [2003] FCAFC 133

Groth v Secretary, Department of Social Security [1995] FCA 1708

Ivovic and Director-General of Social Services [1981] AATA 57

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

Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114

Secretary, Department of Social Services and Burrell [2017] AATA 299

Dobson and Secretary, Department of Social Services [2015] AATA 892

Gavranic and Secretary, Department of Social Services [2015] AATA 934

Tanoski and Secretary, Department of Social Services [2016] AATA 353

REASONS FOR DECISION

Senior Member B J Illingworth


11 May 2018

INTRODUCTION

1. Mrs Bernadette Weiss (“Mrs Weiss”) has applied to this Tribunal to review a decision of the Social Services & Child Support Division dated 17 March 2017 that she did not have an effective claim for Family Tax Benefit (“FTB”) for the 2013/2014 financial year.
2. For the reasons which follow, I affirm the decision under review.

BACKGROUND

3. Mrs Weiss had, since 2000 applied for and was granted a FTB, in respect of her son born in March 1999. On occasions she made the claim for FTB within 12 months of the relevant financial year.
4. When Mrs Weiss first claimed FTB the legislative framework required that the claim be lodged within two years of the relevant financial year.
5. Changes occurred to the legislation which reduced the time within which a claim for FTB must be made; such that from the 2012/2013 financial year the period of time was reduced from two years to one year.
6. By letter dated 13 February 2014, the Department of Human Services (“the Department”) wrote to Mrs Weiss advising her of that change.
7. Mrs Weiss said in evidence, and I accept, that she did not receive that letter and the postal address was incorrect. The Department records previously recorded both a postal address and residential address for Mrs Weiss. It is apparent that at some stage the Department records were changed and the postal address was incorrectly recorded. I accept that Mrs Weiss was not aware of the change in the time limit.
8. In about July 2014 Mrs Weiss completed the 2013/2014 financial year tax return with her income tax agent. Mrs Weiss was to separately claim FTB for that financial year. That claim was required to be lodged by 30 June 2015.
9. Subsequently Mrs Weiss tried unsuccessfully to complete her FTB claim online. On 23 July 2015 she contacted the Department to query why there was a difficulty in processing the claim. She was then advised that her claim was out of time, that she could still lodge the claim which would be rejected, but that she had a right to appeal that rejection.
10. Mrs Weiss believed that she was to receive a hard copy claim form from the Department. Mrs Weiss did not receive that document. She acknowledged in evidence that because of life events she failed to follow up the receipt of the claim form from the Department.
11. In November 2015 there were bush fires affecting the area in which Mrs Weiss lived. The fires damaged her property and she was then distracted by that event and the recovery from the bushfire.
12. On 29 June 2016 Mrs Weiss again contacted the Department and requested a claim form which she subsequently received.
13. It was agreed that Mrs Weiss lodged her FTB claim form for the financial year 2013/2014 on 3 August 2016; more than two years post the end of the 2013/2014 financial year.

STATUTORY FRAMEWORK

14. The legislative provision relevant to the FTB claim for financial year 2013/2014 is found in A New Tax System (Family Assistance) (Administration) Act 1999 (“the Act”). It was an amendment to that Act which changed the period within which to make a claim from two years to one year.
15. Section 5(1) provides:

Need for a claim
(1) The only way that a person can become entitled to be paid family tax benefit is to make a claim in accordance with this Subdivision.

16. Within that Subdivision, s 10(2) and 10(2A) of the Act relevantly provide:

Claim must relate to one income year and be made within a certain period

(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.

(2A) The further period referred to in subparagraph (2)(b)(ii) must end no later than the end of the second income year after the relevant income year.

17. Section 13(1) provides:

Secretary must determine claim

(1) If an effective claim is made, the Secretary must determine the claim in accordance with this Subdivision. If a claim is not effective, it is taken not to have been made.

18. The effect of this legislative scheme was that in respect of the financial year 2013/2014, Mrs Weiss had until 30 June 2015 to lodge the FTB claim. Further, if the Secretary is satisfied that there are special circumstances that prevented the claimant from making the claim before 30 June 2015, there was a discretion to extend the time within which to file the FTB claim to a date no later than 30 June 2016.

ISSUES FOR DETERMINATION

19. There is no dispute that Mrs Weiss made the claim for FTB more than two years from the period provided by the legislation and on 2 August 2016.
20. Mrs Weiss submits that there were special reasons preventing her from making the claim within the first 12 months, namely, that she was not aware of the change in legislation and did not receive the letter dated 13 February 2014 from the Department. Had she done so, Mrs Weiss contends that she would have ensured that the claim was made within the required period.
21. The Department submits that :
    • (a) there were no special reasons that prevented Mrs Weiss from filing the FTB claim enlivening the discretion to extend the time period within which to do so;
    • (b) that even if the discretion was enlivened, s 10(2A) of the Act provided that any extension of time was only available up to 30 June 2016; and
    • (c) because the claim was filed on 3 August 2016 and outside the permissible period for any extension of time, this could never be an effective claim.

SPECIAL CIRCUMSTANCES

22. The term “special circumstances” is not defined by the Act, however there are a number of decisions that provide guidance in interpreting the term.
23. In Beadle and Director-General of Social Security [1984] AATA 176; (1984) 6 ALD 1 Toohey J said that the adjective “special” “looks to circumstances that are unusual, uncommon, or exceptional”.^[1]
24. In Dranichnikov v Centrelink [2003] FCAFC 133 Hill J, (with whom Kiefel and Hely JJ agreed) at [66] said:

Other cases which have considered analogous words such as “special reasons” has tended to conclude, albeit in different contexts, that 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.

25. Other cases in which this principle has been confirmed include Groth v Secretary, Department of Social Security [1995] FCA 1708, Ivovic and Director-General of Social Services [1981] AATA 57, Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 and Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114.
26. The question of whether the failure of a Department to notify a person about a change in the legislative framework, including the time limit to claim FTB, enlivens the “special circumstance” discretion has also been considered. In Secretary, Department of Social Services and Burrell [2017] AAT 299 at [23] the Tribunal said:

The Secretary is not required to notify recipients of changes to legislation. This is well established at law: Secretary, Department of Social Services and Cannon [2015] AATA 1028; Dann and Secretary, Department of Social Services [2016] AATA 196. It is the responsibility of individuals to inform themselves as to their current legal obligations at any time. It follows that the Respondent's lack of knowledge regarding the change in legislation cannot be a "special circumstance" which justifies a waiver of the application of the legislation.

27. In Dobson and Secretary, Department of Social Services [2015] AATA 892 at [20]- [21] the Tribunal said:

Although the Department did take steps to notify Mr Dobson and other likely recipients of the benefit of the change in the law, there is no obligation on it to do so. This principle has been previously stated by the Tribunal in Milroy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs.^[2]
And:
For these reasons I am not satisfied that there are special circumstances which justify the exercise of discretion to extend the time for lodging the claim, even though an extension of only 26 days is required.

Conclusion

28. I find that there was no obligation on the Department to notify Mrs Weiss of the change in the legislation. The fact that the Department tried to do so but failed because the Department recorded an incorrect address does not change that fact.
29. I find there are no special circumstances which prevented Mrs Weiss from claiming FTB and thereby enlivening the exercise of the discretion to extend the time for the lodging of the claim.
30. If I am wrong about the discretion being enlivened, the application is still doomed to fail.

EXTENSION OF TIME

31. Section 5(1) of the Act limits a person’s entitlement to make a claim for FTB and when read with s 10(2A) any extension of time within which to do so is limited by the Act.
32. The operation of s 10(2A) of the Act was discussed in Gavranic and Secretary, Department of Social Services [2015] AATA 934 at [13] in which the Tribunal said:

However subsection 10(2A) of the FAA Act makes it clear that the Secretary may only exercise the special circumstances discretion for a twelve month period, that is from the beginning of the second year after the end of the relevant financial year to the end of that second year.

That principle was restated with approval in Tanoski and Secretary, Department of Social Services [2016] AATA 353 at [14].

33. Hence, s 10(2A) of the Act only permits an extension of time of up to 12 months, namely “no later than the end of the second income year after the relevant income year”. That period relevantly ended on 30 June 2016.

Conclusion

34. The legislation does not permit the discretion to extend the period any further and hence a claim for FTB made on 3 August 2016 in respect of the 2013/2014 financial year could never be an effective claim.
35. The decision under review being the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal made on 17 March 2017 that Mrs Weiss did not make an effective claim for FTB for the 2013/2014 financial year is affirmed.

DECISION

36. The Tribunal affirms the decision under review.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

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Administrative Assistant

Dated: 11 May 2018

Date(s) of hearing:	3 April 2018
Applicant:	In person
Solicitors for the Respondent:	Ms L Odgers FOI and Litigation Branch Department of Human Services

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^[1] Beadle and Director General of Social Security [1984] AATA 176; (1984) 6 ALD 1, [12].

^[2] [2011] AATA 488 (citation in original).