ELIZABETH SEO and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 564
•28 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 564
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2286
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH SEO Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Prof T Sourdin, Member Date28 July 2010
PlaceSydney
Decision The Tribunal affirms the decision under review.
.................[SGD]......................
Prof T Sourdin
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – baby bonus payment – claim for bonus not effective - illness did not prevent claim being lodged – 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)
Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008 (No. 63, 2008)
Social Security Act 1991
Gracie and Secretary, Department of Family and Community Services [2005] AATA 179
Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 75 (26 February 2007)
REASONS FOR DECISION
28 July 2010 Prof T Sourdin, Member INTRODUCTION
1. Elizabeth Seo (“the Applicant”) gave birth to a daughter Eugene on 30 March 2007 in Korea. She and the baby returned to Australia on 31 October 2007. In early November 2007 the Applicant made a claim for family tax benefit and the baby bonus. The claim for baby bonus was rejected on the basis that the Applicant had not applied for the baby bonus within 26 weeks of the birth and that the Applicant was not a resident at the time of the claim.
2. The Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) on 22 May 2009 for a review of the decision made by a Centrelink officer on 24 January 2008 to reject her claim for baby bonus. The Applicant initially sought a review of that decision by an authorised review officer who affirmed the original decision on 22 July 2008. On 20 March 2009, the Applicant appealed that decision to the Social Security Appeals Tribunal (SSAT). On 30 April 2009, the SSAT affirmed the decision under review.
A hearing of this matter was held in Sydney on 28 June 2010. The Applicant appeared on her own behalf. Mr Bernard Slattery 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 the Applicant’s Statement of Facts and Contentions dated 3 June 2010 ( A1) and a copy of the Respondent’s Statement of Facts and Contentions and a List of Authorities dated 6 May 2010 (R1). In addition, the Tribunal had a Doctor’s Report from Dr H Park of the CHA General Hospital in Seoul Korea dated June 15 2009 (A4), a Treatment Report from Dr Lee and Dr Yoo (undated) (A5) and a statement from Elizabeth Seo dated 3 April 2010 (A3), together with a copy of an authority that she wished to rely upon (Gracie and Secretary, Department of Family and Community Services [2005] AATA 179).
ISSUES
3. The issues for the Tribunal to determine are:
(a)Whether the claim for baby bonus made by the Applicant was effective and was made within time or, if not, whether an exception can be made out; and
(b)Whether, if the above issue is settled in the Applicants favour, the Applicant was also an Australian resident for the purposes of establishing eligibility for the baby bonus. Whilst it is clear that she was an Australian citizen, was she also an “Australian resident” at the relevant time?
LEGISLATION
4. Section 36(1) of A New Tax System (Family Assistance) Act 1999 (“FA 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. 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.
5. 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, at the time that the claim was made it imposed in s 39(2) time limits (26 weeks) applicable to making an effective claim.
6. 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 is not effective it is taken not to have been made.
7. Section 39 was amended in 2008 by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008 (No. 63, 2008) which extended the time frame for claiming from 26 to 52 weeks effective from 1 January 2009. According to the Explanatory Memorandum when the changes were introduced to Parliament, this change was effected as a result of the increased baby bonus amount and the fact that additional income testing was required of parents who might need to lodge tax return information. In addition it was noted that the change would benefit the ‘small number’ of parents who did not claim within the 26 week period.
8. In addition, apart from the requirement as to the time limits, s 36 of the Act states that a person must be eligible to receive Family Tax Benefit (FTB) before they can be eligible to receive the baby bonus. To receive the family tax benefit a person must be an Australian resident under s 21 of the Act.
9. The FA Act sets out the relevant criteria for FTB. Section 21(1) provides as follows:
When an individual is eligible for family tax benefit in normal circumstances
(1) An individual is eligible for family tax benefit if:
(a) the individual:
(i) has at least one FTB child; or
(ii)is not an absent overseas recipient and has at least one regular care child who is also a rent assistance child; 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.
When individual satisfies this subsection
(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.
(2) However, the individual is not eligible for family tax benefit if another provision of this Subdivision so provides.
10. Section 3(1) of the FA Act provides “Australian resident has the same meaning as in the Social Security Act 1991”.
11. The Australian residence definitions are set out in Section 7 of the Social Security Act 1991 (The Act).
12. Section 7(2) of The Actprovides that :
7(2) 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.
13. Section 7(3) of The Act provides further guidance with respect to the concept of residence:
7(3)In deciding for the purposes of this Act whether or not a person is residing in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and…
14. The Respondent contends that the Applicant’s claim for payment of baby bonus is not effective, as it was made later than 26 weeks from the birth of the Applicant’s child and was not in compliance with the requirements stated in s 36(2) of the FA 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.
15. 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 although the Applicant suffered illness associated with the birth of her child, the illness could not be categorised as severe illness. Or, the Respondent has submitted, that if the Applicant did suffer from a severe illness it was of limited duration and did not extend for 26 weeks and therefore it did not prevent a claim being lodged. In the alternative, the Respondent argues that the “Australian Resident” requirements cannot be met by the Applicant who was living in Korea at the time of the birth and for a period of more than six months following the birth.
EVIDENCE
16. The Applicant is an Australian citizen who was born in the Republic of Korea on 17 November 1973. She came to Australia on 29 November 1988 and returned to South Korea on 15 January 2000. She was a student in Australia and attended high school, university (Science) and TAFE, and also worked full time in Australia before she went back to Korea. Her parents passed away in Australia before her trip to South Korea and she was depressed following her parents death. In evidence, the Applicant said that this was one of the reasons that prompted her trip to Korea in 2000.
17. The Applicant had one cousin in Korea when she went to Korea in 2000. She lived in South Korea from 15 January 2000 until 30 October 2007. She returned to Australia for brief holidays on an annual or biannual basis, and again in November 2006 for one month where she stayed at her sister’s place. In evidence, the Applicant said that she always regarded Australia as her home.
18. The Applicant says that she intended to move back to Australia in November 2006 but could not find a place to stay. She was expecting her baby at that time. She went to inspections and made enquiries of real estate agents. She wanted to see an obstetrician in Australia in November 2006 but could not make an appointment as the obstetrician was fully booked. She had sold her possessions in Korea before coming to Australia. She could not stay with her sister who had other family members coming to stay. Her sister suggested that she terminate the pregnancy.
19. In Korea she was staying at a friend’s place who gave her free accommodation. In November 2006, she decided to return to Korea and stay at her friend’s place. Ms Seo worked at home, on a part time basis, in Korea until her daughter (Eugene) was born on 30 March 2007. She had some financial support from her sister in Melbourne during this time. She tried to save money and borrowed money from her sisters during her pregnancy and after Eugene was born.
20. The Applicant has two sisters in Sydney, one in Melbourne and one in Japan. She has no family in Korea other than her cousin.
21. After Eugene’s birth, the Applicant was in hospital for 10 days; then had one or two more overnight admissions for bleeding within the first three months. In her Statement of Facts and Contentions the Applicant in her Statement says:
Applicant couldn’t come back to Australia as early as she wished because Ms Seo was in serious condition of heavy bleeding after the caesarean. Ms Seo was hospitalised twice due to heavy bleeding and her new born child was also hospitalised in Infant Intensive Care a day after her birth.
22. The Applicant and her baby were discharged from Hospital about 14 days after the birth. The Report of Dr Park (A4) states that although the Applicant suffered from heavy bleeding following the birth, that the bleeding stopped after about 14 days. The same report states that the Applicant required ongoing treatment for at least a few months as “the ultrasound showed that there still was a lot of blood in her womb and she can become serious again at any time. I advised her not to take a long trip that takes more than 30 minutes for a minimum 3 months as she was in an unstable condition.”
23. The Applicant had regular twice weekly medical appointments in the three months following the birth. Dr Parks’s report covers the period of treatment and indicates that this period of supervision and treatment was from 30 March 2007 to 2 July 2007 – that is, for a period of around three months. During this time, the Applicant was concerned she might need another operation. She used some money that she had previously saved up to help with hospital bills and expenses. The Applicant said that s she had some ongoing bleeding up to four months following the birth.
24. Eugene was hospitalised when she was born for two weeks. By three months, according to the Applicant, her condition was stable, but she had some issues with vomiting that required additional trips to the hospital.
25. The SSAT noted that the Applicant also suffered from back pain and headaches following the birth. The report of Drs Lee and Yoo (Exh A5) reports that the Applicant’s “...pelvis was twisted due to the birth of a child. It is common for mothers and needs to be corrected or the pain will persist and become too hard to adjust....she needed to take 30 chiropractic and physiotherapy sessions, acupuncture for toxic removal, and herbal treatment to reinstate her health after birth......Traditional medicines believe that a new mother shouldn’t do any work...Flying overseas was definitely not good for the new born baby and mother in the first year. Mother and baby’s condition was not good enough to go on a long trip.”
26. After about six months following the birth of the baby the Applicant said that she was able to do some work.
27. The Applicant also said that within a month of Eugene’s birth she wanted to return back to Australia, and her sister in Melbourne eventually said she could help with money to help her come back to Australia. The Applicant said that a significant issue in returning back to Australia was that there was nowhere for her to stay and also because of the medical advice she received.
28. When she came back from Korea with her baby to Australia she lived with a friend of her sister’s for one week in Sydney, and then lived with her sister in Melbourne for three months before moving in with a sister in Epping.
29. Ms Seo worked in Korea in a range of companies before her pregnancy. She worked at home during her pregnancy as an interpreter and translator either under contract or on a casual basis. She did not plan to remain in Korea. When she found out she was pregnant she planned to return to Australia.
consideration and application of the law
30. The Respondent relied on the Statement of Facts and Contentions and said that it is clear that the Applicant would have found it difficult to lodge her claim within the required time frame. These difficulties that prevented the Applicant from lodging a claim were primarily related to the fact that she was living in Korea and had a lack of financial support and did not have living arrangements organised in Australia. These difficulties were outside the control of the Applicant.
31. As noted previously, the Respondent says that although the Applicant may have been ill, she did not meet the ‘severe illness’ exception and there is insufficient evidence to support a finding that she was ‘seriously ill’ . The respondent says that the reason why the Applicant did not return to Australia and lodge her claim was linked to her uncertain financial and living arrangements. If the Applicant is regarded as severely ill following the birth of Eugene, the Respondent says that any illness had subsided within three to four months following the birth.
32. The Applicant says that the period of time for making the claim should be extended by up to 12 weeks to take into account the time that she was severely ill.
33. It is clear that a number of matters prevented the Applicant from returning to Australia. However, the only exception under the legislation is the medical exception arising from “severe illness”. Severe illness and the meaning of these words have been considered in other AAT cases. In Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 75 (26 February 2007) the Tribunal said:
[6] The term ‘severe illness’ is not defined in the Act. The meaning of the term has been considered in previous cases in the Tribunal. Considering the meaning of ‘severe’ in the Macquarie Dictionary and the Oxford English Dictionary it connotes something that is harsh, serious or grave. I am mindful that the word ‘severe’ is used in other statutory contexts, ‘severe financial hardship’ at section 97 of the Act for example, and the word should be construed as far as possible to give the same meaning. ‘Severe financial hardship’ has been construed to mean something less than destitution but more than merely straitened financial circumstances, importing a need for a degree of financial suffering that is severe or extreme in nature. Thus a ‘severe illness’ is one that is not slight or moderate, but is one that is harsh, serious, grave or extreme.
[7] The word ‘illness’ means a state of bad health or sickness. Plainly enough the severity of illness is a spectrum. An illness may be severe without necessarily being very severe or extremely severe, to the extent that it is life-threatening for example, but may be fairly severe or moderately severe. 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 greater the severity, the more grave the illness and the greater the difficulty associated with it. Cancer is a severe illness, but its severity in the particular circumstances may vary from time to time. 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.
34. In the Taylor case, the Tribunal carefully considered the medical evidence before finding for the Applicant. In that matter, the question the Tribunal asked was: “Did [the Applicant’s] illness render her unable to lodge her claim for maternity payment within the statutory 26 week period?” This is also the question that must be asked in this matter. The Respondent contended that the reasons for the failure to lodge the claim were related to other factors – not the Applicant’s illness, which may have been severe for a few weeks or at most a few months.
35. The Respondent submitted that childbirth will often involve medical issues, and that severe illness must be the decisive factor that prevented the Applicant from lodging a claim for the baby bonus. The Respondent accepts that the Applicant had bleeding and other medical issues, but says that the medical evidence does not support that it was a problem, or that these issues could be called a ‘severe illness’ for the 26 week period or preventing the lodging of the claim.
36. The evidence supports a finding that the medical problems suffered by the Applicant were a significant issue for the first few months following Eugene’s birth. It may be that the illness was “severe” for at least the period that the Applicant was hospitalised and possibly even for a few months after that. The illness for the first few weeks and possibly the first few months could be called ‘harsh, serious, grave or extreme.’
37. However, after the first few weeks and possibly for a longer period of up to three months or so (at most covering the time that the Applicant was treated by Dr Park), the illness could not be categorised in this way. It was not ‘harsh, serious, grave or extreme’ and it was not the illness, but other factors that prevented the claim being lodged. The illness cannot therefore be defined as a severe illness for the relevant period.
38. After the initial bleeding problems had subsided, the Applicant may have suffered from some pain as a result of her ‘pelvis twist’ that required chiropractic, acupuncture, physiotherapy and herbal treatments and this may have been uncomfortable and even painful, however, it cannot be said that this condition constituted a ”severe illness”. The evidence indicates that after the initial bleeding condition had subsided and within the first month or two following the birth, she was able to function, make decisions, travel to appointments and look after her newborn child.
39. The evidence supports the conclusion that after about three months, there were practical considerations rather than medical reasons that prevented the Applicant from returning to Australia and lodging her claim. It is the Tribunal’s view that because the Applicant’s medical condition did not prevent her return to Australia within the 26 week period and lodging her claim, then the exception under s 39(3) of the Act is not available.
40. In addition, the Applicant contended that the Tribunal should (in the alternative) extend the time for lodging the claim by 12 weeks and add this amount of time onto the 26 week claim period (the 12 week period indicating the time that the Illness might have been severe). I am not persuaded by this approach. In my view the question that must be asked is, did severe illness prevent the Applicant from lodging her claim within 26 weeks of the birth? The answer is that it may have prevented the Applicant from lodging a claim in the first weeks and even months following the birth but it did not prevent the Applicant from lodging a claim after that time. Other factors, including her location in Korea and the personal and financial issues that prevented her return to Australia, were responsible for preventing the claim from being lodged, and I accept that these may have been outside the Applicant’s control.
41. Notably, the Applicant says that the law should have an exception that can apply under her circumstances. She said “If the law says I am not qualified for baby bonus – the law should show some flexibility.” As noted at the hearing of this matter, the only exception under the section is that which relates to “severe illness”, and the Applicant does not meet this exception.
42. The Tribunal agrees with the Applicant that it is unfortunate for the Applicant 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 accordingly.
43. Given the findings above, the Tribunal considers that it is not necessary to consider whether the Applicant was an Australian resident at the relevant time. The Tribunal notes that both the Applicant and the Respondent prepared submissions in relation to this issue which would naturally have been considered if the exception under s (3) had been made out.
44. Having considered all the evidence, the Tribunal is satisfied that the Applicant’s claims for baby bonus was not effective; was not made within time, and does not consider that an exception can be made out.
Decision
45. For the above reasons the decision under review is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Prof T Sourdin, Member.
Signed: ......................[SGD]..............................................
Date/s of Hearing 28 June 2010
Date of Decision 28 July 2010
For the Applicant Self-represented
For the Respondent Mr Bernard Slattery
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