Carty; Secretary, Department of Families, Community Services and Indigenous Affairs and

[2007] AATA 1287

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1287

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N° V 200600877

GENERAL ADMINISTRATIVE   DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And CHRISTINE MARIE CARTY

Respondent

DECISION

Tribunal Regina Perton, Member

Date2 May 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that maternity allowance is not payable to Ms Carty in respect of her son Nicholas because she did not lodge the claim within 26 weeks after the birth, and the period of 26 weeks should not be extended.

(sgd) Regina Perton

Member

SOCIAL SECURITY - maternity payment - late application - whether applicant suffered severe illness associated with the birth - whether time for lodgement should be extended   

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

Re Hammoud and Secretary, Department of Family & Community Services [2006] AATA 174

Re Hodges and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 231

Re McMaster and Secretary, Department of Family and Community Services [2002] AATA 955

Re QX06/14 andSecretary, Department of Families, Community Servicesand Indigenous Affairs [2006] AATA 1024.

Re Zbrog and Secretary, Department of Family and Community Services (2003) ALD 631

REASONS FOR DECISION

2 May 2007 Regina Perton, Member    

1.      Christine Carty gave birth to her son Nicholas on 18 May 2005.  Seven months later she lodged an application for maternity payment with Centrelink, the service delivery agency for the Department Of Families, Community Services and Indigenous Affairs.  Her application was refused because her claim was not made within 26 weeks of the birth.  Ms Carty sought review of that decision. The Social Security Appeals Tribunal (SSAT) found that she had suffered severe illness associated with her child and granted an extension of time to lodge her claim for maternity payment.  The Department seeks a review of that decision.

ISSUE

2.      The issue before the Tribunal is whether Ms Carty had a severe illness associated with the birth of Nicholas, and if so, whether she was unable to make a claim within 26 weeks of the birth.

DID MS CARTY HAVE A SEVERE ILLNESS ASSOCIATED WITH THE BIRTH OF NICHOLAS?

3.      Ms Carty told the Tribunal that she had a difficult caesarian section birth and that she required considerable medical and other assistance after the birth.  Ms Carty explained that she had suffered an infection and the healing process was slow.  She said that she felt isolated, despite some assistance from her partner’s parents and from child care workers she employed occasionally.  Her family lives some distance away and was unable to help.  Her partner works long hours and was able to provide limited assistance.  Ms Carty said that for the first two months after the birth she found difficulty in leaving the house, and did not cope well with the demands of her baby.  She stated that she did not want her doctor to prescribe medication while she was breastfeeding, and that this had added to her difficulties.

4.      Ms Carty emphasised that she suffered from a type of depression after the birth, and was reluctant to see her friends or undertake household tasks.  She said that she was too unwell to consider matters such as making a claim for the maternity payment.  In any event, she believed that she could do so through the tax system at the end of the financial year.  Ms Carty agreed that in a written statement to the SSAT dated 28 December 2005, she said that on 23 December 2005 (after the expiry of the 26-week time limit on 16 November 2005) her accountant pointed out the necessity to lodge the claim with Centrelink within time.  In the statement she said: There is no doubt had I known this I would have applied sooner…  

5.      Apart from these issues Ms Carty said that after the birth she noticed a lump on her face which needed investigation.  This caused extreme anxiety as she feared the condition might be serious.  She stated that she underwent various tests and the lump eventually disappeared.  She explained that at the time of lodging her claim she did not want to mention her medical condition.

6.      In a letter dated 6 February 2006 Dr Michael Wells, Ms Carty’s general practitioner, stated that she attended for investigation and management of a significant medical condition over a three-month period from 18 August 2005.  He said she was required to attend surgical and oncology specialists on seven further occasions to exclude haematological malignancy.  Dr Wells said that this process, in combination with the demands of the baby, prevented her from lodging her application within the prescribed time.  In a further letter dated 12 April 2006 Dr Wells added that Ms Carty had had a post-operative wound infection that prevented her from lifting any weight, driving a car and carrying out general household tasks, requiring her to pay for babysitting services.  He also said that the period after the birth was traumatic for her and that the circumstances contributed to a reduced mood and a requirement to attend social workers and child health care professionals.  

7.      Ms Jenny Duffield, a social worker like her friend Ms Carty, stated that she has known Ms Carty socially and professionally for many years.  Ms Duffield stated that during the eight months after the birth Ms Carty exhibited behaviour similar to post natal depression, becoming withdrawn, isolated and displaying a reduced mood.  Ms Duffield said that in her opinion Ms Carty was unable to focus on issues such as lodging the application for maternity payment, and that her depressive state added to the difficulties associated with the caesarian section and the lump on her face until her mood shifted in January 2006.

8.      In late 2006, Ms Carty prepared a written submission about post natal depression based on texts she had read.  She stated that… just because I was not formally diagnosed or treated in a office based setting doesn’t mean I wasn’t suffering the significant effects of PND.  She pointed out that all of the books talked about the number of women that go undiagnosed and untreated and that she believes that she was such a person.   

9.      Section 39(2) of the A New Tax System (Family Assistance)(Administration) Act 1999 (the Act) provides that an application for maternity payment is to be made within 26 weeks of the child’s birth.  Section 39(3) of the Act enables the period to be extended if the Secretary is satisfied that the claimant was unable to make the claim in normal circumstances because of severe illness associated with the birth of the child. 

10.     In Re Zbrog and Secretary, Department of Family and Community Services [2003] AATA 1256 the Tribunal held that the severe illness need not continue for the entire 26-week period, but that the illness must have significantly impaired the claimant to the extent that the claimant was unable to lodge the claim in that period.

11.     In Re QX06/14 andSecretary, Department of Families, Community Servicesand Indigenous Affairs [2006] AATA 1024 the Tribunal noted that, although the applicant may have experienced postnatal depression, her evidence was that if she had known about the 26-week time limit she would have been able to lodge the claim in time. The Tribunal concluded that, as a consequence, even if she had suffered from her claimed condition, she had not been rendered unable to lodge the claim.

12.     In Re McMaster and Secretary, Department of Family and Community Services [2002] AATA 955 the Tribunal held that a diagnosis of postnatal depression was not made at the time and the claimant received no specific treatment for that or any other serious medical condition, she had the means to travel to shops or Centrelink offices, and received some assistance from her husband. The Tribunal held that in those circumstances she was not prevented from making a claim within time.

13.     In Re Hodges andSecretary, Department of Families, Community Servicesand Indigenous Affairs [2006] AATA 231 the Tribunal held that the claimant suffered difficulties after the birth but she was able to drive a car and she spent periods out of the house, so she was capable of lodging the claim within time.

14.     In Re Hammoud and Secretary, Department of Family & Community Services [2006] AATA 174, the Tribunal found in favour of a claimant with poor English language skills who lodged her claim one day late.

15.     The Macquarie Dictionary defines severe as harsh; harshly extreme.  Severe illness is defined as grave, which in turn is defined as momentous; important or critical; involving serious issues.   

16.     In assessing Ms Carty’s evidence and the other material, including medical reports, the Tribunal accepts that she had complications arising from the surgery involved in the caesarean section birth.  The Tribunal also accepts that Ms Carty suffered from reduced mood (as described by Dr Wells) and experienced difficulties coping with the demands of her baby.  However, there is no documentation written at the time to suggest that she sought or was given treatment by a psychologist, psychiatrist or other medical professional for postnatal depression arising from the birth.  Ms Duffield’s observations about Ms Carty’s behaviour were written more than one year after the birth, and much of the contact between them was by telephone.  In all the circumstances the Tribunal finds that the condition described as reduced mood was not a severe illness.       

17.     In relation to the lump discovered on Ms Carty’s face, the Tribunal accepts that she attended for investigation and treatment over a three-month period from 18 August 2005, and that the lump eventually disappeared.  However there is no persuasive medical or other evidence that this condition was connected with the birth of the child.           

18.     In any event, Ms Carty had a mistaken belief that she would be able to lodge the claim at the end of the financial year, and conceded that if she had known about the strict time limit, she would have applied for the allowance sooner.  She also conceded that she had undertaken other administrative tasks during the six month period including registering her son’s birth with Medicare on 1 July 2005. 

19.     While the Tribunal accepts that Ms Carty faced many difficulties during the six months after the birth of her child, the Tribunal is not satisfied that she was prevented from lodging the claim due to a severe illness associated with the birth of the child.  She is therefore unable to satisfy s 39(3) of the Act, and the period in which to lodge the claim should not be extended. 

DECISION

20.     The Tribunal sets aside the decision under review and substitutes a decision that maternity allowance is not payable to Ms Carty in respect of her son Nicholas because she did not lodge the claim within 26 weeks after the birth, and the period of 26 weeks should not be extended.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Ursula Noyé

Clerk

Date of hearing:  23 January 2007

Date of decision:  2 May 2007
Advocate for the applicant:          Self-represented
Advocate for the respondent:       Mr M. Hester, Centrelink