Greenslade and Secretary, Department of Family and Community Serv ices [2003] AATA 107 (23 January 2003)

Last Updated: 6 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 107

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2002/77

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ELLEN GREENSLADE

Applicant

And

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal

Senior Member WJF Purcell

Date 23 January 2003

Place Adelaide

Decision

For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Maternity Allowance - whether applicant is eligible for Maternity Allowance in respect of foster child - whether birth mother was entitled to payment of Maternity Allowance

A New Tax System (Family Assistance) Act 1999 sections 36, 37

REASONS FOR DECISION

23 January 2003

Senior Member WJF Purcell

1. This matter came on for Hearing on 23 January 2003. At the end of the Hearing, I decided to affirm the decision under review, and the applicant stated that she did not require written reasons for the decision. On 29 January 2003, she lodged a request for written reasons, and these Reasons for Decision are provided accordingly.

2. This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 20 February 2002, which affirmed the decision of a delegate of 29 November 2001, as affirmed by an Authorised Review Officer on 2 January 2002, that the applicant is not eligible for payment of Maternity Allowance in respect of her foster child, Shiane Birch.

3. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), together with the exhibits tendered by the applicant, who appeared on her own behalf and gave oral evidence. Mr Kilderry represented the Department.

4. On 29 October 2001 the applicant lodged a claim for Family Tax Benefit and Maternity Allowance in relation to a child, Shiane Birch, who was born on 29 July 2001. By Order of the Court, Shiane had come into her and her husband's care, as foster parents, on 20 August 2001. Family Tax Benefit was paid to the applicant from 20 August 2001. On 29 November 2001, the applicant was advised by the Department that she was ineligible to receive Maternity Allowance, as a payment had been made already, to Shiane's natural mother, who had made application soon after the birth of the child.

5. Maternity Allowance is payable in accordance with section 36 of the A New Tax System (Family Assistance) Act 1999 (the Act), which as far as is relevant to this matter, provides:

"36(1) An individual is eligible for maternity allowance in respect of a child in any of the 4 cases set out in this section.

Parent of child

36(2) First, an individual is eligible for maternity allowance in respect of a child if:

(a) the individual is a parent of the child; and

(b) the individual is eligible for family tax benefit in respect of the child at any time within the period of 13 weeks starting on the day of the child's birth and the individual's Part A rate at that time is greater than nil.

..."

6. Section 37 of the Act provides:

"(1) Only one individual is eligible for maternity allowance in respect of a child.

(2) If 2 or more individuals would otherwise be eligible for maternity allowance in respect of the same child, the individual who is eligible is the one determined by the Secretary to be eligible."

7. The delegate's decision was affirmed by an Authorised Review Officer on 2 January 2002, and by the SSAT on 20 February 2002.

8. The applicant submits that Shiane's birth mother, Michelle Birch, fraudulently claimed the Maternity Allowance, and that she was aware she would not be allowed to take Shiane home, because of her "track record".. Michelle Birch has 4 children, and Shiane is the youngest. All of the children are in care. Michelle has a history of drug abuse, and Shiane was born dependant on drugs. She was in the high dependency unit of the Women's and Children's Hospital from her birth, on 29 July 2001, until she was placed in the care of the applicant and her husband, as foster parents, on 20 August 2001. She was never in her mother's care, and the mother had no entitlement therefore to the payment. It is wrong that the mother should be allowed to take the payment and deprive Shiane of any benefit.

9. The Department contends that section 36(2) of the Act lists criteria that must be satisfied for a person to be qualified for Maternity Allowance, that a person is qualified for Family Tax Benefit in respect of the child on any day within 13 weeks after the date of the child's birth. Part 3, Division 1 of the Act provides the eligibility criteria for Family Tax Benefit. Section 37(1) of the Act provides that only one individual is eligible for Maternity Allowance in respect of the child. In this case Maternity Allowance has been paid for Shiane to her birth mother. It is contended that the birth mother was eligible for Maternity Allowance, and Family Tax Benefit, at the time of her claim. The applicant might have become eligible for Maternity Allowance (and Family Tax Benefit) for Shiane, by virtue of the Court Order dated 20 August 2001, if payment of Maternity Allowance had not already been made to the birth mother. With the Maternity Allowance payment however having already been made to an eligible person, a second payment of Maternity Allowance cannot be made to the applicant by virtue of section 37 of the Act.

10. On the evidence, Shiane was never in the care of her birth mother, but remained in hospital until placed with the applicant and her husband by Order of the Court, on 20 August 2001. Ms Tindall, Social Worker's letter reads, in part, as follows:

"Following Shiane's birth on the 29/7/01, she remained in hospital as a result of her medical needs, until the 20/8/01. Family and Youth Services (FAYS) was granted a court order for Shiane, placing her under the Guardianship of the Minister, effective from the 20/8/01. Shiane was placed with Ellen and Tony Greenslade on the 20/8/01. She has remained with these carers since this date.

At no time since Shiane's birth has she lived with her mother, or been in her mother's care.

..." [Exhibit A7]

11. The legislation provides that an individual is eligible for Maternity Allowance if that person is the parent of the child, and eligible for Family Tax Benefit in respect of the child at any time within the 13-week period of the birth of the child. The birth mother applied for the benefit, Centrelink was satisfied that the birth mother was eligible for Family Tax Benefit, and thus the allowance was paid to her. The applicant, by virtue of the Court Order of 20 August 2001, became eligible to claim the allowance, but by this time the allowance had been paid to the birth mother.

12. The applicant's anger and frustration with the birth mother's actions is understandable, but section 37(1) of the Act provides that only one individual is eligible for Maternity Allowance in respect of a child; and in this matter, that person, the birth mother, has been paid the allowance. The applicant is not eligible therefore, for Maternity Allowance for the foster child, Shiane.

13. For these reasons, the Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed: .......................................................................................

Associate

Date of Hearing 23 January 2003

Date of Decision 23 January 2003

Counsel for the Applicant In person

Solicitor for the Applicant -

Counsel for the Respondent Mr R Kilderry

Solicitor for the Respondent Centrelink