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

[2007] AATA 2032

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2032

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 200700056

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

Applicant

And	ANDREW DOLBERG and KIYONO DOLBERG
Respondents

DECISION

Tribunal Deputy President S D Hotop

Date10 December 2007

PlacePerth

Decision

The Tribunal sets aside the decision under review and, in substitution therefor, decides that:

· pursuant to s 36 of the A New Tax System (Family Assistance) Act 1999 (Cth), Kiyono Dolberg is not eligible for maternity payment in respect of Taichi Dolberg;

· pursuant to s 36 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), Andrew Dolberg is not entitled to be paid maternity payment in respect of Taichi Dolberg.

..........[Sgd S D Hotop]...........

Deputy President

CATCHWORDS

SOCIAL SECURITY – maternity payment – claim form lodged by parents of child – claim form signed by child's mother as claimant, and by child's father as partner – child’s mother not eligible for maternity payment – child's father eligible for maternity payment – claim for maternity payment made by child’s mother – claim for maternity payment not made by child's father – child's father not entitled to be paid maternity payment – decision under review set aside

A New Tax System (Family Assistance) Act 1999 (Cth), s 3(1), s 21, s 22 and s 36

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), s 36, s 37, s 38(1) and s 39(2)

Acts Interpretation Act 1901 (Cth), s 22(1)(aa)

Social Security Act 1991 (Cth), s 7(2)

REASONS FOR DECISION

10 December 2007   Deputy President S D Hotop   

Introduction

1.      Andrew Dolberg (“Andrew”) and Kiyono Dolberg (“Kiyono”) are the parents of Taichi Dolberg (“Taichi”) who was born on 3 December 2005 in Japan.

2.      Andrew was born in Australia and is an Australian citizen.  Kiyono was born in Japan and is a citizen of Japan.  Taichi is an Australian citizen by descent.

3.      Andrew and Kiyono departed Australia for Japan on 5 June 2005.  After Taichi’s birth, Andrew returned to Australia on 8 January 2006, and Kiyono returned to Australia with Taichi, holding a Temporary Resident (Class UK) (Subclass 820) visa, on 28 May 2006.

4.      On 29 May 2006 Andrew and Kiyono lodged with Centrelink a form of claim for maternity payment and family tax benefit in respect of Taichi.  The claim form – which required, inter alia, details to be provided about the claimant in a column headed “You”, and about the claimant’s partner in a separate column headed “Your partner” – was signed by Kiyono under the heading “You” and by Andrew under the heading “Your partner”.

5.      On 19 June 2006 a Centrelink officer decided that Kiyono was not eligible for maternity payment in respect of Taichi, but that she was eligible for family tax benefit. On 22 August 2006 a Centrelink Authorised Review Officer (“ARO”) affirmed that decision.

6.      On 22 January 2007, however, the Social Security Appeals Tribunal (“SSAT”) set aside the abovementioned decision of the Centrelink officer, as affirmed by the ARO, in relation to maternity payment, and substituted a decision that the form of claim for maternity payment lodged on 29 May 2006 was to be taken to be a claim for maternity payment by Andrew, and that maternity payment in respect of Taichi was payable to Andrew.

7.      The Secretary to the (former) Department of Families, Community Services and Indigenous Affairs (“the Secretary”) has applied to this Tribunal for review of the decision of the SSAT.

The Issue and the Tribunal’s Determination

8. It is common ground that, in accordance with s 36(2) of the A New Tax System (Family Assistance) Act 1999 (Cth) (“FA ACT”), Kiyono is not eligible for maternity payment in respect of Taichi, but that Andrew is eligible for maternity payment in respect of Taichi.

9. The issue for the Tribunal’s determination is whether Andrew is entitled, under ss 36-38 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“FA Administration Act”), to be paid maternity payment, in respect of Taichi, pursuant to the abovementioned form of claim for maternity payment which was lodged with Centrelink on 29 May 2006.

10.     For the reasons which follow, the Tribunal has determined that Andrew is not entitled to be paid maternity payment, in respect of Taichi, pursuant to that claim.

The Material before the Tribunal

11.     

The Tribunal, with the consent of the parties, directed that the Secretary’s application for review be determined “on the papers” without a hearing, pursuant to

s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). Accordingly, the Tribunal, for the purpose of this review, has considered the following material:

· the documents (T1-T16, pp 1-129) lodged by the Secretary in accordance with s 37 of the AAT Act;

·     the Secretary’s Statement of Facts and Contentions filed on 13 June 2007;

·     a written submission filed by Andrew and Kiyono on 1 November 2007.

The Relevant Legislation

12. Section 36 of the FA Act, as in force at the relevant time, provided for eligibility for maternity payment as follows:

“36(1)  An individual is eligible for maternity payment in respect of a child in any of the 4 cases set out in this section.

36(2)    First, an individual is eligible for maternity payment in respect of a child if:

(a)       the individual is a parent of the child; and

(b)       the individual either:

(i)is eligible for family tax benefit in respect of the child at any time within the period of 13 weeks starting on the day of the child’s birth; or

(ii)would be so eligible except that the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is nil.

…”

13. Eligibility for family tax benefit is provided for in s 21 of the FA Act which relevantly provides:

“21(1)  An individual is eligible for family tax benefit if:

(a)the individual has at least 1 FTB child (see section 22 and later provisions); and

(b)       the individual:

(i)        is an Australian resident; or

(ia)      is a special category visa holder residing in Australia; or

(ii)       satisfies subsection (1A); and

(c)the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.

21(1A)   An individual satisfies this subsection if the individual is the holder of a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991, and either of the following applies:

(a)the individual is in Australia; or

(b)the individual:

(i)is temporarily absent from Australia for a period not exceeding 13 weeks; and

(ii)the absence is an allowable absence in relation to special benefit within the meaning of Part 4.2 of that Act.

…”

14. Section 22 of the FA Act relevantly provides:

“22(1)  An individual is an FTB child of another individual (the adult) in any of the cases set out in this section.

Individual aged under 18

22(2)    The individual is an FTB child of the adult if:

(a)       the individual is aged under 18; and

(b)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; and

(c)       the individual is in the adult’s care; and

(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

…”

15. By s 3(1) of the FA Act, the expression “Australian resident” has the same meaning as in the Social Security Act 1991 (Cth) (“SS Act”). By s 7(1) of the SS Act, the expression “Australian resident” has the meaning given by s 7(2), namely:

“An Australian resident is a person who:

(a)       resides in Australia; and

(b)       is one of the following:

(i)        an Australian citizen;

(ii)       the holder of a permanent visa;

(iii)      a special category visa holder who is a protected SCV holder.”

16. Division 3 of Pt 3 of the FA Administration Act, as in force at the relevant time, contained the following relevant provisions:

“36      The only way that a person can become entitled to be paid maternity payment or maternity immunisation allowance is to make a claim in accordance with this Division.

37       The only persons who can make a claim in accordance with this Division are individuals.

38(1)    An individual (the claimant) may make a claim for payment of:

(a)maternity payment or maternity immunisation allowance in normal circumstances; or

…

39(2)    Subject to subsection (3), a claim for payment of maternity payment in normal circumstances is not effective if it is made later than 26 weeks after:

(a)if the circumstances covered by the claim involve eligibility under any of subsections 36(2) to (4) of the Family Assistance Act – the birth of the child mentioned in that subsection; or

…”

17. Section 22 of the Acts Interpretation Act 1901 (Cth) relevantly provides:

“(1)     In any Act, unless the contrary intention appears:

…

(aa)     individual means a natural person;

…”

Analysis

Kiyono is not eligible for maternity payment in respect of Taichi

18.     

As previously mentioned, it is common ground that Kiyono is not eligible for maternity payment in respect of Taichi. Having considered s 36(2), together with subss 21(1) and 21(1A), of the FA Act, the Tribunal so finds on the ground that, at the relevant time, Kiyono did not satisfy s 21(1)(b), and therefore did not satisfy

s 36(2)(b), of the FA Act.

Andrew is eligible for maternity payment in respect of Taichi

19.     

It is also common ground, as previously mentioned, that Andrew is eligible for maternity payment in respect of Taichi. Having considered s 36(2), together with

s 21(1), of the FA Act, the Tribunal so finds on the ground that, at the relevant time, Andrew satisfied those provisions.

Is Andrew entitled to be paid maternity payment in respect of Taichi?

20. According to s 36 of the FA Administration Act, the “only way that a person can become entitled to be paid maternity payment … is to make a claim” in accordance with Div 3 of Pt 3 of that Act. The critical matter for the Tribunal’s determination is, therefore, whether Andrew made such a claim. It is common ground that the only relevant claim for maternity payment is that made in the claim form which was lodged with Centrelink by Andrew and Kiyono on 29 May 2006.

21.     The Tribunal has carefully considered the completed form of claim for maternity payment and family tax benefit lodged with Centrelink by Andrew and Kiyono on 29 May 2006 (T4, pp 41-71).

22.     On page 2 of the form, instructions are given under the heading, “how to claim in 3 easy steps”.  Step 1 states:

“…

Fill in this form using a blue or black pen only.  If you would like assistance to complete the form, call the Family Assistance Office.

Check that you and your partner have answered all the questions you need to answer, and have signed and dated the form.” (original emphasis)

Step 3 states:

“If you are claiming Maternity Payment you must lodge this form with the Family Assistance Office:

·within 26 weeks of the birth of a child, OR

·in the case of an Australian adoption, within 26 weeks of a child coming into your care, OR

·in the case of an overseas adoption, within 26 weeks of the child entering Australia.

…” (original emphasis)

23.     Pages 3-29 of the form contain 32 questions which require specified information to be provided in writing in the form.  For the purpose of providing the required information in the form:

·Questions 1-3, 7, 9, 11 and 18-23 contain 2 columns – the column on the left is headed “You”, and the column on the right is headed “Your partner”;

·Questions 4-6, 8, 10, 12-17 and 24-32 are not divided into columns, and are either expressly or impliedly addressed to the person referred to in the form as “You”.

The Tribunal notes, in particular, that the latter group of questions includes:

·Question 6: “… Are you claiming Maternity Payment and Maternity Immunisation Allowance?”;

·Question 12: “… Are you using this form to claim Family Tax Benefit?”. (emphasis added).

24.     Page 30 of the form is headed “Your Statement” and continues:

“This statement must be signed by you and your partner.

·I declare the information provided in this form is correct to the best of my knowledge.

·I declare that I have received and I am aware of the privacy notice in the Information booklet.

·I understand that I may receive a top-up payment of Family Tax Benefit, or have to pay back money after the end of the financial year if my family income estimate changes.

·I understand that if my income estimate is less than my actual annual family income, my top-up payment of Family Tax Benefit, including supplement amounts can be used to offset a tax debt.

·I understand that if my actual annual family income changes, any overpayment will need to be repaid and that some or all of my overpayment of Family Tax Benefit may be recovered from my tax refund and/or future Family Tax Benefit payments, including the end of year supplement payments.

·I understand that end of year supplement payments can also be used to offset any Family Tax Benefit or Child Care Benefit amounts I owe from previous years.

·I understand giving false or misleading information is a serious offence.

·I understand that the Family Assistance Office can make relevant enquiries to ensure I receive my correct entitlement.” (original emphasis)

There then appear 2 signature columns - the column on the left is headed “You”, and the column on the right is headed “Your partner”.  The Tribunal notes that the signature of Kiyono appears in the left column under the heading “You”, and that the signature of Andrew appears in the right column under the heading “Your partner”.

25.     Having carefully considered the abovementioned completed claim form, the Tribunal has no doubt that it constitutes a claim for maternity payment and family tax benefit by Kiyono.  The Tribunal likewise has no doubt that the claim form does not constitute a claim for maternity payment and family tax benefit by Andrew, or by Kiyono and Andrew jointly.

26. The Tribunal finds, therefore, that the “individual” – that is, the natural person (see s 22(1)(aa) of the Acts Interpretation Act 1901 (Cth)) – who made the claim for maternity payment on 29 May 2006 is Kiyono, not Andrew.

27.     It follows from that finding that Andrew is not entitled to be paid maternity payment in respect of Taichi.

Conclusion

28.     In their written submission Andrew and Kiyono submitted (inter alia):

“1.When we lodged the claim form originally the lady who conducted the interview checked all our paperwork including visa and time limits to lodge the forms and basically said that everything was there and correct.

2.At the time of the interview we felt we should have been informed that Kiyono was not eligible.  If we were informed Andrew would have immediately lodged another claim in his name so that he was under the 26 weeks limit.

3.Therefore due to not receiving the correct service and advice from Centrelink Andrew should be able to make a claim for the payment.

…”

29.     The Tribunal notes that, while those assertions may be relevant in the context of a complaint to the Commonwealth Ombudsman or a claim under the Scheme for Compensation for Detriment Caused by Defective Administration, they are not relevant to the question whether Andrew is legally entitled, under the FA Act and the FA Administration Act, to be paid maternity payment in respect of Taichi.

Decision

30.     For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that:

· pursuant to s 36 of the FA Act, Kiyono is not eligible for maternity payment in respect of Taichi;

· pursuant to s 36 of the FA Administration Act, Andrew is not entitled to be paid maternity payment in respect of Taichi.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: ..........................[Sgd Y Maker].........................
  Associate