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

[2008] AATA 149

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL      )

)    No 2007/2192

GENERAL ADMINISTRATIVE DIVISION        )

ReMICHAEL JOHN ASTILL

Applicant

AndSECRETARY DEPARTMENT OF FAMILIES HOUSING COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

TribunalSenior Member M D Allen

Date26 February 2008

PlaceSydney

DecisionThe decision under review is affirmed.

................[sgd].......................

M D Allen
  Senior Member

CATCHWORDS

MATERNITY ALLOWANCE – review of decision by respondent affirming a prior determination that an application for maternity payment was out of time – claim must be made in normal circumstances not later than 26 weeks after birth of child – extension of 26-week period if claimant suffers severe illness associated with birth of child – severe illness must be part of the cause and contribute to failure to lodge application within time – question of fact – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 section 36

A New Tax System (Family Assistance) (Administration) Act 1999 sections 39 and 39(3)

Administrative Appeals Tribunal Act 1975 sections 33(1) and 37

Strata Schemes Management Act 1996 (NSW) section 186

CASE LAW

Collector of Customs v Agfa-Gevaert Ltd (1995-6) 186 CLR 389

Maunsell v Olins [1975] AC 373

Re Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 75

Secretary, Department of Social Security v Kershaw (unreported Federal Court judgement No 185 of 198; 28 March 1988)

March v E & MH Stramare Pty Limited (1990-91) 171 CLR 506

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705

Riana Pty Limited v The Owners – Strata Plan No 22336 [2007] NSWSC 1033

Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 691

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

26 February 2008	Senior Member M D Allen
Summary

1.      By application made 28 May 2007, the Applicant sought review of a decision by the Social Security Appeals Tribunal affirming a prior determination that an application for maternity payment was out of time.

2.      The actual claim was made on 21 September 2006 following the birth of the Applicant's child Arkey on 29 December 2005.

3. Section 36 of the A New Tax System (Family Assistance) Act 1999 provides for the payment of a maternity allowance following the birth of a child. Section 39 of the A New Tax System (Family Assistance) (Administration) Act 1999 provides inter alia that the claim for maternity allowance must be made in normal circumstances not later than 26 weeks after the birth of the child. Subsection 39(3) of the Administration Act provides for the extension of the 26-week period by stating:

Restrictions on claiming

…

(3)If the Secretary is satisfied that the claimant was unable to make a claim for payment of maternity payment in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 26 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.

…

4.      The term “severe illness” is not defined in the Administration Act but the term consists of plain English words and I do not regard it necessary to place any quasi-judicial gloss upon them.  Nor, in my opinion, is it appropriate to examine separately the meaning of the words “severe” and “illness” when the term is a composite phrase (see Collector of Customs v Agfa-Gevaert Ltd (1995-6) 186 CLR 389).

5.      In Maunsell v Olins [1975] AC 373 at 391, Lord Simon of Glaisdale said:

…

“Statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.”

…

6.      Therefore, I agree with Member Webb where in Re Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 75 he said:

…

“The severity of illness is a matter of degree.  It is a question of medical fact that must be assessed in the particular circumstances.  It is not something to be assessed by a fixed objective standard but rather must be assessed having regard to the claimant’s particular circumstances.  …  The measure of difficulty specified in the limited terms of the discretion is that the person is unable to lodge a claim because of the severe illness.”

…

7.      The Applicant submitted, correctly in my opinion, that the legislation was beneficial legislation and so should be interpreted in favour of any beneficiary of the legislation.  That much is axiomatic.  However, as Burchett J pointed out in Secretary, Department of Social Security v Kershaw (unreported Federal Court judgement No 185 of 198; 28 March 1988):

…

“It does not seem to me that the reference to beneficial legislation assists.  There is a well known rule of construction of beneficial legislation, enjoining courts, where it is ambiguous but fairly capable of a meaning which would effectuate the benevolent purpose of the legislation, to adopt that meaning.  I do not think this principle assists, at all, in a problem of onus of proof, nor do I think there is any authority to justify the proposition that, if the Tribunal cannot be sure beyond reasonable doubt, it is obliged to give the benefit of the doubt to a recipient of social welfare.”

…

(With all respect to his Honour, it would seem to be more appropriate to refer to proof on the balance of probabilities.)

8.      Once severe illness has been found to exist, it matters not who suffers the illness so long as it is “associated with” the birth of the child.  The term “associated with” is one of inclusion and is certainly wide enough to encompass an illness of either the mother or the child.

9.      Again, it is a question of fact whether the illness is associated with the birth of the child.  That being established, the further question is whether that illness rendered the Applicant incapable of making a claim.

10.     In this matter, the claim is a joint claim by both parents.  As I understand the Applicant’s claim, it is that because of illness suffered by the child and consequent illness (anxiety) suffered by the mother, both Applicants overlooked submitting the claim in the 26 weeks immediately after the birth of the child.

11. The Applicant also makes the claim that he and Mrs Astill were not aware of any 26-week limit, but that is irrelevant. The only ground upon which time can be extended is the ground in ss 39(3) of the Administration Act, namely severe illness associated with the birth of the child.

12.     Subsection 39(3) in effect requires that the severe illness be a cause of the failure to lodge the application within time.  The test of causation is no longer a but for test but as stated by the High Court in March v E & MH Stramare Pty Limited (1990-91) 171 CLR 506, essentially a question of fact to be answered by common sense and experience. As I read the subsection, it is not necessary that the severe illness be the sole or operative cause of the failure, but that the severe illness must in truth be part of the cause and contribute (to use the words of the Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323).

13.     The only medical evidence as to the severity of the illnesses of both the child and his mother are two reports by the family’s general practitioner, a Dr Serafim.

14.     I note that whereas Dr Serafim has a basic MBBS and is a Fellow of the Royal Australian College of General Practitioners, he has no post-graduate qualifications in either paediatrics or psychiatry.

15.     Dr Serafim’s first report dated 11 October 2007 is of no value as in that report, he merely sets out his opinion that there was a severe illness without exposing his reasoning (cf: Makita (Aust) Pty Limited v Sproule (2001) 52 NSWLR 705). The Applicant has sought to distinguish Makita (supra) referring to the decision of a single judge of the New South Wales Supreme Court in Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 691. As Brereton J pointed out in that case (in a ruling on evidence):

…

“It is important to appreciate that the approach to expert evidence counselled by the judgement of Heydon in Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705, necessarily involves questions of degree. It cannot be that an expert, in providing a report containing opinions, has to set out every single piece of learning and knowledge that he or she has applied, directly or indirectly, in reaching the conclusion. The test is whether the report sufficiently discloses the basis and rationale of the expert’s opinion as to enable it to be understood and appreciated and fairly challenged.”

…

Here, Dr Serafim has not exposed his reasoning at all.

16.     I do not consider the remarks of Rothman J in Riana Pty Limited v The Owners – Strata Plan No 22336 [2007] NSWSC 1033 at para 41 as applicable to the Administrative Appeals Tribunal. Although ss 33(1) of the Administrative Appeals Tribunal Act 1975 states at paragraph (c), “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate” (cf: s 186(2) of the Strata Schemes Management Act 1996 (NSW) referred to by Rothman J, which refers to the Tenancy Tribunal acting “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”).

17.     The judgment of Heydon J in Makita (supra) makes it clear that whether the document is formally admitted or not, the use that can be made of it is dependent upon the setting out, in the report, of the basis of the expert's opinion.  As Heydon J said, “If the court cannot be sure of that, the evidence is strictly speaking not admissible and so far as it is admissible, of diminished weight”.

18.     The judgement of Heydon J goes not only to admissibility but also to weight and as the weight to be given to any item of evidence, paragraph 33(1)(c) of the AAT Act cannot override the judgement of the Tribunal.

19.     Dr Serafim’s second report dated 16 November 2007 (in the form of a statement) elaborates on his first.  The report reads inter alia:

…

3.“Arkey presented with severe rash on various parts of his body and face.  This rash from time to time became infected and caused his significant discomfort.  It was also very unsightly.

4.A diagnosis of Eczema with secondary Staph. Aureus infection was made.  However this condition proved extremely resistant to treatment and the possibilities of other, more serious diagnoses was considered.

5.The resistance of this child’s condition to treatment as well as the recurrent flares of eczema and infection lead [sic] to Arkey’s mother becoming extremely distressed, both from the obvious manifestation of the illness, but also from the concern that a more serious diagnosis was being missed.

6.This led to her being in a constantly anxious state, in itself a serious medical condition, and in my view the failure to lodge the claim in time was symptomatic of this condition.”

[Signed]

20.     In his second report, Dr Serafim refers to Mrs Astill as being “in a constantly anxious state”.  He does not make any diagnosis of any psychiatric condition, for example an anxiety state.  As pointed out by Drummond J in Comcare v Mooi (1996) 69 FCR 439, especially at 444, there is a distinction between clinically significant behaviour outside the boundaries of normal mental functioning, and behaviour, even though unusual which can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances.

21.     Here, Mrs Astill quite understandably became anxious when her child exhibited the signs of eczema and secondary infection.  There is no evidence that she herself developed a severe illness as a result.

22.     As far as the child is concerned, there is no doubt that following his birth there were various complications none of which, in my opinion, could be said at the time to amount to a severe illness.

23.     Mrs Astill in her statement dated 6 September 2007 says that after returning home with Arkey, there were real concerns as to his health.  At paragraph 8 of her statement, she details these concerns, namely:

…

"8.A day or so after the birth, and while still in hospital, he was examined by Dr Lim, the specialist paediatrician attached to the Hospital.  She told us –

a.Arkey had problems with his hips in that they did not appear to have seated themselves properly in the joints; and

b.he had a heart murmur, although we were told that at this age this was no cause for concern, as frequently this occurs for a day or so after birth.”

…

24. At documents T8 and T10 in the papers prepared for the Tribunal pursuant to s 37 of the AAT Act, are reports from paediatrician, Dr Lim. In the first report dated 4 January 2006 (T8, p52), Dr Lim refers to a “clicking but stable left hip” and some cosmetic signs, and notes that the rest of the examination of the child was normal. In the later report dated 15 February 2006 (T10, p54) addressed to a Dr Allsop, Dr Lim notes:

… 

“He also had an easily audible ejection systolic murmur at the left sternal edge with no radiation or signs of cardiac failure.  His left hip was clicky but stable.  The rest of his examination was normal.

…  I recommended that he have a hip ultrasound before the family go to Canada.  I will review his murmur on their return and will be in touch.” 

…

25.     An ultrasound report of 13 February 2006 (T9, p53) states “No ultrasound features of hip dysplasia”.

26.     On 4 April 2006, Dr Lim reported to Dr Allsop:

“Thank you for asking me to see Arkey again.  As you know, I heard a cardiac murmur at his six week check.  The family have been away overseas and Arkey has not shown any signs of problems form [sic] his murmur.  He has had an URTI but is continuing to feed well and is thriving despite having occasional gastroesophageal reflux.  He opens his bowels every two days.  Thankfully his hip ultrasound was normal, excluding acetabular dysplasia.

Arkey was big for his age with a weight of 6.74kg, length 63.5cm and head circumference 40cm.  He had left plagiocephaly without a palpable sternomastoid tumour or tightness of his neck muscles.  His murmur was no longer audible.  The rest of his examination was normal.

…  Hopefully his murmur will not return.  I do not anticipate Arkey having any medical problems and have discharged him to your care but would be happy to see him again if you or Sharmilla are worried.” 

…

27.     Reading the reports of Dr Lim, who is a paediatrician, it is clear that she had no concerns regarding Arkey’s health at the time he was under her care, i.e. from 4 January 2006 to 4 April 2006.  Based on the reports of Dr Lim, I cannot find that in this period Arkey suffered any “severe illness”.

28.     That any illness, either present or potential, was not severe is borne out by Mrs Astill’s statement of 6 September 2007, where at paragraph 11 she states:

…

11.“I was so concerned with Arkey that I was considering cancelling this trip.  I asked Dr Lim whether we should cancel.  She indicated that the conditions were potentially serious but not life threatening and nothing critical was likely to occur in the weeks we would be away.  Also as we were going to Canada there would be first rate medical treatment available in the event that anything occurred.”

…

29.     The hip and heart problems having resolved, Arkey developed eczema.  The first note of this condition in the clinical records of the Cremorne General Practice is a prescription for sigmacort cream on 26 June 2006.  Prior to that entry there is no record whatsoever of any severe illness affecting the child.

30.     On 25 July 2006, a medical practitioner at the Cremorne practice noted, “if keeps recurring arrange paed derm review” and on 28 August 2006, the clinical notes read, “has a recurrence.  Letter written – ref E Collins”.

31.     Unfortunately, there is no further reference to any report following the letter referred to on 28 August 2006, although the Applicant at T12 refers to a referral to a dermatologist.  But what appears from the clinical notes of the Cremorne practice and the tendered photographs is that whereas the eczema was chronic and no doubt painful, I cannot regard it as being of such severity as to cause the parents to fail to lodge the required application within time.

32.     Whereas I have no doubt that the parents were anxious regarding the various ailments of their newborn son, it is clear that at no time was he suffering a severe illness.  As at 4 April 2006, his paediatrician was able to state to the family general practitioner, “I do not anticipate Arkey having any medical problems and have discharged him to your care”.  I note the first reference to eczema in the clinical notes at the Cremorne practice is 26 June 2006, that is to say some two months after being discharged from Dr Lim’s care.

33.     I am satisfied that at no time did either the child Arkey or his mother suffer a severe illness, and I am also satisfied that at no time were the claimants unable to make a claim for maternity payment because of severe illness associated with the child’s birth.

34.     I consider that the real reason the claim was made out of time was given by the Applicant in a letter to the Respondent dated 20 September 2006 (T12, p57 at para 7).  In that letter he states:

…

7.“During all of this, the concerns about Arkey’s health, and our visit overseas, the Claim form for Maternity Payment was misplaced.  I actually thought my wife had already lodged it and I think she may have thought I had.  However only in the last week, in that Arkey’s condition is now stable and we have been sorting areas in our home, which, frankly have not been sorted for some time, did we come across the Claim Form, which obviously had not been lodged.”

…

35.     As I am satisfied there was never any severe illness associated with the birth of the child, the decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:   ...[sgd]....
               Mwela Kapapa, Associate

Date/s of Hearing:  14 January 2008
Date of Decision:  26 February 2008
Solicitor for the Applicant:                  Self-represented
Advocate for the Respondent:          Centrelink Legal Services