Campbell and Department of Family, Community Services and Indigenous Affairs

[2007] AATA 1568

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1568

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2006/856

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STEWART CAMPBELL

Applicant

And DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date20 July 2007  

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides to extend the period within which Mr Campbell was required to make the claim for maternity payment to 18 May 2005  

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

Ms N Bell
  Senior Member  

MATERNITY ALLOWANCE – 26 weeks after the Birth of the Child – Exception to the rule – unable to make the claim because of severe illness – post natal depression – international moving of house – renovations – severe illness – because of sever illness does not have to be the sole cause -

Re Amanda Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs (2007)

Trust Company of Australia Ltd v Commissioner of State Revenue [2006] VCS

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

REASONS FOR DECISION

Ms N Bell, Senior Member

1.Maxim Campbell was born on 27 October 2004.  Among other things, his birth gave rise to a right to claim a lump sum maternity allowance no later than 26 weeks after his birth.  Maxim’s father, Stewart Campbell, did not claim the allowance until 18 May 2005 – 29 weeks after Maxim’s birth.

2.There is an exception to the 26 week rule.  The exception is when a claimant is “unable to make the claim” within 26 weeks “because of severe illness associated with the birth of the child concerned” (s.39(3) A New Tax System (Family Assistance) (Administration) Act 1999) .

3.Mr Campbell says there was severe illness associated with Maxim’s birth and that was the post natal depression suffered by his wife during most of the first year of Maxim’s life.  He says that this depression, together with the family’s move back to Australia from Sweden to a house in mid-renovation; Maxim’s asthma, eczema, and repeated bouts of gastroenteritis and colds; and Mr Campbell’s return to a demanding job made him unable to lodge the claim in time.

4.The Secretary says that the illness suffered by Maxim’s mother did not prevent Mr Campbell from lodging the claim – and it is Mr Campbell who is the claimant.  The Secretary also points to other things that Mr Campbell was able to achieve during the 26 week period including relocating his family, managing renovations and returning to his job and says these achievements show his ability to attend to various matters.

issue

5.The sole issue for me to determine is whether Mr Campbell was unable, because of his partner’s illness, to lodge his claim within 26 weeks of Maxim’s birth.  The Secretary has not disputed that his partner’s illness was severe.

6.This fundamental issue raises some other questions, including:

(i)what was the practical effect of Maxim’s mother’s illness on Mr Campbell’s ability to lodge the claim?

(ii)did other factors limit Mr Campbell’s ability to lodge the claim?

(iii)to activate the exemption, must a severe illness be the sole cause of an inability to lodge a claim or can it be a dominant, substantial or merely contributing cause?   

effect of the illness on mr campbell

7.I accept Mr Campbell’s evidence that during the period of his partner’s illness, she would be distraught and tearful when he arrived home from work at about 7.00 pm.  He would then take over the care of the two children and put them to bed.  After attending to cooking and cleaning, he would spend time with his partner discussing her concerns and attempting to provide support to her.  Mr Campbell undertook all of the shopping for the family and dealt with the family’s bill paying.  He said they did cope – but barely.  He said his partner did not want to speak with anyone but him about her condition.  However, she eventually agreed to talk to Mr Campbell’s father, a psychiatrist, and he was able to provide her with weekly therapy and counselling which ultimately helped her.  Mr Campbell said, however, it was some time before the load on him diminished even though he felt some relief to know she was getting some assistance.  I accept this evidence.

8.Mr Campbell contended that his partner’s illness had a pervasive effect on day to day life and resulted in a lack of capacity and opportunity to deal with external administrative tasks.

other factors

9.Mr Campbell conceded that other factors also had an effect on his capacity to attend to a claim for maternity allowance.  He described coming back, from Sweden, to a partly renovated house.  He said he was forced to spend considerable time on the renovations for months after the family’s return and described the difficulty and stress of living in an unfinished house with two small children.

10.He also described some of the demands of his return to full time employment as the manager of a busy tour operation company.  This included at least four weekends interstate, between February and April 2005, further reducing the time he had available to attend to caring for his family and dealing with the state of the unfinished house.

11.In addition, he said, Maxim suffered repeated illness, including gastroenteritis, eczema, bronchial infections and asthma - difficult with any child but particularly difficult and stressful with a small baby.

12.On top of this was the daunting task of moving and resettling a family from Sweden to Sydney four weeks after the birth of a child.

13.Finally, all was compounded by Maxim having been born overseas which meant that the usual forms were not available at the time of his birth.  Mr Campbell said he first learnt of the availability of the allowance after contact with Medicare to organise immunisation and Medicare registration.  The allowance had not yet been introduced when their first child was born.  He noted that the claim for maternity allowance is included as part of the claim form for family tax benefits and, to complete the form, he had to obtain a tax file number and foreign income statements.  He had obtained the form in March 2005, about four to six weeks before the 26 week deadline.  He also noted the different deadlines for family tax benefit (two years) and maternity allowance (26 weeks).

14.There were clearly many factors at play.

“because of severe illness”

15.      Section 39(3) of the Act enables the 26 week period to be extended if the claimant is unable to make a claim within this time “because of severe illness associated with the birth of the child concerned.” The Administrative Appeals Tribunal considered the meaning of the phrase “because of severe illness” in Re Amanda Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs (2007). In that case Mrs Taylor was granted an extension of the period within which to make a claim for maternity payment due to severe illness associated with the birth of her child. The Member said:

It is not necessary that the illness was the only operative cause of her inability to lodge the claim within the prescribed time. The legislation…does not require a sole cause test to be applied…A causal relationship must exist between the inability and the illness before the discretionary power is enlivened.

16.      The meaning of the phrase “because of” was further considered by the Supreme Court of Victoria in Trust Company of Australia Ltd v Commissioner of State Revenue [2006] VSC 64. Here, the absence of the word ‘solely’ was specifically considered. The Court found that absent the word ‘solely’ it does not matter that the event was “because of” other factors provided it was also “because of” the relevant factor. Hansen J decided that the use of the word ‘solely’ in other sections of the legislation strengthens the view that the words “because of” on their own do not require a sole cause test.

17. Section 97(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 demands a waiver of debt where that debt is “attributable solely to an administrative error made by the Commonwealth.” It is illogical to interpret section 39(3) as imposing a sole cause test in light of the Legislature’s demonstrated willingness to use the term ‘solely’ where this is its intention.

18.      Section 39(3) of the Act does not require that the severe illness was the sole cause of the Mr Campbell’s inability to make the claim within the 26 week period. It is sufficient that the illness was a dominant or substantial cause.

19.      The period following Maxim’s birth was a difficult time for Mr Campbell and his family. There was the disruption of an international move, a recent birth, renovations to the home, a demanding job, two small children to care for and Maxim’s illness. At the same time Mr Campbell’s partner was suffering from post natal depression. This debilitating illness was an underlying and pervasive factor, affecting one of the two adults in a family already experiencing considerable difficulties. In its pervasiveness, Mr Campbell’s partner’s post natal depression had an exacerbating effect on all of the other difficulties faced by the family. Without the exacerbating effect of Mr Campbell’s partner’s illness all of the other factors faced by Mr Campbell would likely have been less difficult to manage. The post natal depression was therefore at least a substantial cause of Mr Campbell’s inability to make the claim within the 26 week period.

20.      On this basis, I find that Mr Campbell was unable to make a claim for payment of the maternity payment within 26 weeks of Maxim’s birth because of illness associated with the birth of that child. Therefore the 26 week period within which Mr Campbell was required to make the claim should be extended to 18 May 2005. The claim is therefore an effective one and Mr Campbell is entitled to be paid the maternity payment.

Decision

21.      The decision under review is set aside and instead the Tribunal decides to extend the period within which Mr Campbell was required to make the claim for maternity payment to 18 May 2005.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ..............[ Sarah Sandstrom ]...................
      Associate

Date of Hearing  30 May 2006                 
Date of Decision   20 July 2007

Solicitor for the Respondent      James Larcombe