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

[2008] AATA 876

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 876

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2277

GENERAL ADMINISTRATIVE DIVISION		)
Re		GREGORY ADAMS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date2 October 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd].......................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – baby bonus payment – claim for payment is not effective if made later than 26 weeks after birth of child – no severe illness associated with child – no extension of time – decision under review affirmed.

A New Tax System (Family Assistance) Act 1999 s 36(1)

A New Tax System (Family Assistance) (Administration) Act 1999 ss 36, 38(2), 39, 39(2), 39(3), 41(1)

REASONS FOR DECISION

2 October 2008 Mr S Karas, AO, Senior Member

INTRODUCTION

1.      Mr Gregory John Adams (“the Applicant”) applied to the Administrative Appeals Tribunal (“the Tribunal”) on 26 May 2008 for a review of a decision made by a Centrelink officer on 6 December 2007 to reject his claim for baby bonus.  On 27 December 2007, the Applicant sought reconsideration of that decision by the original decision maker. On 18 January 2008, the original decision maker affirmed the decision not to pay baby bonus.  The Applicant sought further review of that decision by an authorised review officer on 4 February 2008.

2.      The authorised review officer affirmed the original decision on 28 February 2008.  On 5 March 2008, the Applicant appealed that decision to the Social Security Appeals Tribunal (SSAT).  On 18 April 2008, the SSAT affirmed the decision under review.

3.      A hearing of this matter was held in Brisbane on 23 September 2008.  The Applicant appeared on his own behalf.  Mr Hamilton appeared for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the Respondent”).  The Tribunal had before it the T-documents lodged in accordance with section 37 of the Administrative Appeals Act 1975, together with a copy of a letter from the Respondent’s legal adviser to the Applicant dated 25 June 2008 and a copy of the Respondent’s Statement of Facts and Contentions and List of Authorities dated 14 August 2008.

BACKGROUND

4.      The Applicant has two children born in Thailand in July 2004 and April 2007.  The Applicant and his family arrived in Australia from Thailand on 16 October 2007.  On 17 October 2007, the Applicant lodged claims for family tax benefit and baby bonus with Centrelink.  The family tax benefit was granted with respect to both children.  However, the Applicant’s claim for baby bonus was rejected by Centrelink on 6 December 2007.

5. Section 36(1) of A New Tax System (Family Assistance) Act1999 (“the Act”) provides that eligibility for baby bonus in respect of a child depends on the Applicant meeting one of the four criteria set out in that section.  This Act and A New Tax System (Family Assistance) (Administration) Act1999 (“the Administration Act”) are administered by the Respondent and the Secretary’s delegates in Centrelink. Section 36 of the Administration Act provides that a person can only be entitled to payment of baby bonus if a claim is made in accordance with the legislation stated in Division 5 of Part 3 of the Administration Act. Under s 38(2) of the Administration Act, a claim is not effective unless made in the form and manner and with the information and documents required by the Respondent. Section 39 of the Administration Act provides restrictions that affect a person’s ability to make an effective claim for baby bonus “in normal circumstances”. In particular, it imposes in s 39(2) time limits (26 weeks) applicable to making an effective claim. Section 39(3) of the Administration Act allows an extension of time for a claim to be made because of severe illness associated with the birth of the child. Furthermore, s 41(1) of the Administration Act provides that a claim for payment of baby bonus if not effective is taken not to have been made.

6. The Respondent conceded that the Applicant met the eligibility criteria in s 36 of the Act. However, the Respondent contends that the Applicant’s claim for payment of baby bonus is not effective as it was made later than 26 weeks of the birth of both of the Applicant’s children as per the requirements stated in s 36(2) of the Act. Consequently, the Respondent maintains that the Applicant’s claim for baby bonus was not effective when it was made and that it is therefore taken not to have been made pursuant to s 41(1) of the Administration Act. Furthermore, it is submitted that the extension of time for a baby bonus claim referred to in s 39(3) of the Administration Act does not apply in this case as there was no severe illness associated with the birth of the child.

ISSUES

7.      The issues for the Tribunal to determine are:

(a)Whether the Applicant’s claims for baby bonus were made on time; and

(b)Whether the baby bonus can be paid.

EVIDENCE

8.      At the hearing, the Applicant gave evidence to the effect that:

·     He feels he was given no knowledge of his eligibility for welfare payments and thought that as his children were born overseas he was not aware of the rights to family tax benefits and baby bonus.

·     He filed for citizenship of his children while overseas in Thailand but thought he could only apply for benefits when in Australia.

·     Although he was aware of the baby bonus for some time, he thought one had to be in Australia to apply for it.

·     He referred to “cruising” through the ATO files on the computer while overseas but could not “action the baby bonus” and “let it go”.

·     He registered his children as Australian citizens while in Bangkok and while he was in Australia for some time during the years 2004-2007, he did not apply for baby bonus as he did not think he was eligible.  He added that he thought Australia’s overseas Embassies should advise people about their rights and entitlements.

·     He noted that both children are healthy although the youngest was born premature and spent the first couple of weeks of his life in hospital.

·     While in Australia after the birth of his children, he did not make any enquiries of Centrelink.

·     He referred to “mitigating circumstances” such as the delay in undergoing DNA tests regarding his first child, producing his passport to show parentage and the like for his children and the processing of his children’s Australian citizenship.

·     He reiterated that he, his children and wife do not and have not suffered any severe illness except for the youngest child being born premature.

·     He was aware of the baby bonus but did not apply for the same until the day after the family returned to Australia on 16 October 2007, according to him some 10 days only outside of the 26 weeks limit.

9.      The advocate for the Respondent referred to the legislative requirements for the baby bonus.  He indicated that the Applicant had not applied for the bonus when in Australia before October 2007 although he was in and out of Australia a number of times.  The Applicant was aware of the “child care scenario” however, he did not make any enquiries of Centrelink before.  The advocate stated that the Applicant was out of time and as the “severe illness” extension did not apply in this case, his claim could not succeed.  Consequently, the Applicant cannot be paid the baby bonus for his two children.  Although this outcome was “unfortunate”, the advocate submitted, the strict terms of the legislation had to be followed.  As the claim was out of time it was not effective.

CONSIDERATION OF FINDINGS

10.     From the evidence and material before it, the Tribunal finds:

(a)The Applicant’s children were born on 25 July 2004 and 7 April 2007.

(b)The Applicant claimed baby bonus on 17 October 2007.

(c)The Applicant did not make an earlier claim because he was not aware that payment could be made for children born overseas.

11. The Applicant’s claims for baby bonus in October 2007 were made more than 26 weeks after the birth of each child. Consequently, they were not effective claims. A claim that is not effective is taken not to have been made (see s 41(1) of the Administration Act). Furthermore, as there was no severe illness associated with the birth of the children, the exception set out in the Act does not apply to the Applicant although the Tribunal notes that the Applicant’s second child was born premature and spent his first few weeks in hospital.

12.     The Tribunal agrees with the advocate for the Respondent that it was “unfortunate” for the Applicant and his family that the claim for baby bonus was not made in accordance with the legislation.  However, the Tribunal is bound by the legislation and must apply the law as expressed in the legislation.

CONCLUSION

22.      The Tribunal affirms the decision under review.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed: ......................[Sgd]..............................................
              Elizabeth Young, Research Associate

Date/s of Hearing  23 September 2008
Date of Decision  2 October 2008
For the Applicant  Mr Adams was self-represented
For the Respondent                  Mr B Hamilton, departmental advocate