Hall and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 90 (8 February 2010)

Last Updated: 9 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 90

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0710

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Karen Hall

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Senior Member Jill Toohey

Date 8 February 2010

Place Sydney

Decision

The decision under review is affirmed

...............[sgd]...............................
Senior Member

CATCHWORDS

SOCIAL SECURITY - Baby bonus – claim received outside 26-week period – exception does not apply – decision under review is affirmed.

A New Tax System (Family Assistance) (Administration) Act 1999

Administrative Appeals Tribunal Act 1975

REASONS FOR DECISION

8 February 2010	Senior Member Jill Toohey
Background

1. Karen Hall seeks review of a decision by Centrelink to refuse her claim for Baby Bonus.
2. Ms Hall’s daughter, Zoe, was born on 20 April 2007. At the time of her birth, a claim for Baby Bonus had to be made no later than 26 weeks after her birth: s 39(2), A New Tax System (Family Assistance) (Administration) Act 1999 (the Act).
3. The earliest record of a claim by Ms Hall is 28 July 2008 when Centrelink received an application by post.
4. On 26 August 2008 Centrelink refused Ms Hall’s claim on the ground that it was received outside the 26-week period and the single exception in the Act by which the period could be extended did not apply to her. On 20 January 2009 the Social Security Appeals Tribunal (SSAT) affirmed that decision.
5. Ms Hall and Centrelink have agreed that this review should be determined without a hearing. I am satisfied that the issues for determination can be adequately determined in their absence on the basis of the documents before me. The documents comprise Ms Hall’s application for review and documents filed by Centrelink in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 including the decision of the SSAT which outlines oral evidence given to that tribunal by Ms Hall and her husband.

The issue

6. A claim for Baby Bonus is not effective if it is made later than 26 weeks after the birth of the child unless severe illness associated with the birth of the child means that a person is unable to make a claim: s 39 of the Act. Ms Hall has suffered from severe depression both before and since the birth of her daughter. Her depression relates to her pregnancy but she has frankly conceded that the exception does not apply to her.
7. Ms Hall’s claim therefore had to be made by 19 October 2007. I have to decide:

(i) whether Ms Hall made a claim for Baby Bonus within the statutory time limit;

(ii) if she did not, whether there is any provision in the Act by which the period can be extended.

Did Ms Hall make a claim for Baby Bonus within 26 weeks?

8. Ms Hall says, and Centrelink does not dispute, that she tried, without success, to lodge an on-line claim for Baby Bonus some time before 20 July 2007. She says that, on 20 July 2007, after her on-line attempt failed, she posted an application form. Despite searching its file, however, Centrelink can find no record of receiving this application.
9. According to Centrelink’s records, the earliest date on which a claim was received from Ms Hall was 28 April 2008. Ms Hall says she had nominated a rarely-used bank account for the Baby Bonus, thinking she would keep the money as a ‘nest egg’ for Zoe. When she discovered, in about April 2008 while completing her tax return, that she had not received the payment, she made her second application.
10. The s 37 documents include a photocopy of a letter dated 20 July 2007 from Ms Hall attaching an application for Baby Bonus signed on 21 April 2007. The letter says her computer played up while she was completing the on-line claim and gives details of her bank account and tax file numbers for herself and her husband “to help in the processing of my maternity payment claim”. Ms Hall gave the photocopied documents to Centrelink after her claim was rejected.
11. The SSAT heard evidence from Ms Hall and her husband and found it more probable than not that she completed and posted a claim form on 20 July 2007. The SSAT based its finding on the “clarity and force” of Ms Hall’s oral evidence and the existence of the photocopy of the letter dated 20 July 2007 and attached application which, it said, was consistent with Ms Hall’s evidence that she kept a copy for her records.
12. On the basis of the documents before me, I reach the same conclusion as the SSAT, that Ms Hall completed a claim for Baby Bonus and posted it to Centrelink on 20 July 2007.
13. It may be that Ms Hall’s claim was lost in the post and never arrived, or it may be that it arrived and was misplaced by Centrelink. Whatever the reason, I accept that Centrelink has no record of a claim received before 28 April 2007.

When is a claim made?

14. The only way that person can become entitled to be paid Baby Bonus is to make a claim in accordance with the Act: s 36.
15. A claim is not “effective” if it is made later than 26 weeks after the birth of a baby, and in the form and manner, with such information and documents, as required by the Secretary: s 38(2). A claim which is not “effective” is deemed not to have been made: s 41(1).
16. As Ms Hall’s application was received later than 26 weeks after her baby was born, it follows that it was not an effective claim.

Can the period be extended?

17. Section 39(3) of the Act enables the Secretary, where satisfied that a person was unable to make a claim because of severe illness associated with the birth of the child, to extend the period of 26 weeks to such longer period as the Secretary considers appropriate.
18. There is no dispute that Ms Hall has suffered from severe depression since before the birth of her baby. According to the SSAT’s decision, it is related to her pregnancy insofar as it originated when her university made it not possible, because of her pregnancy, to complete a Masters of Osteopathy. However, Ms Hall does not claim that it is related to the birth of her baby in the manner contemplated by s 39(3).
19. There is no other discretion in the Act to extend the period for making a claim for Baby Bonus.

Conclusion

20. Given the terms of the Act, the decision under review must be affirmed. If the Act provided discretion to extend the period for Ms Hall’s claim, I would have no hesitation in exercising it. My reasons are:

(i) Ms Hall has provided medical certificates confirming her severe depression for which she is still receiving psychiatric care. It is quite possible that, were it not for the depression, she might have checked her bank account sooner and been alerted to the fact that her claim for Baby Bonus had not been processed;

(ii) I accept that Ms Hall completed and posted her claim on or around 20 July 2007;
(iii) the possibility that Centrelink misplaced her claim cannot be entirely discounted; and
(iv) Baby Bonus is a one-off payment with no ongoing payments attached to it.

I certify that the 20 preceding paragraphs are a

true copy of the reasons for the decision

herein of Senior Member Jill Toohey

Signed: ......[sgd].........................................................................

Diana Weston Associate

Date of Hearing: 4 February 2010

Date of Decision: 8 February 2010

Applicant: Self-represented

Solicitor for the Respondent: Glenda Heggen, Centrelink