Favelle and Secretary, Department of Family and Community Services

[2006] AATA 127

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 127

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/589

GENERAL ADMINISTRATIVE DIVISION		)
Re		CAROLINE FAVELLE

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date16 February 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – maternity payment – need for timely claim – claim ineffective – decision affirmed.

A New Tax System (Family Assistance) Act 1999 s 36
A New Tax System (Family Assistance)(Administration) Act 1999 ss 36, 37, 38, 39, 41
Acts Interpretation Act 1901 s 29(1)
Social Security Administration Act 1991 s 16(4)

Duncan and Secretary, Department of Family and Community Services [2000] AATA 858
Re Secretary, Department of Employment, Education, Training and Youth Affairs and Coward (1997) 49 ALD 698

REASONS FOR DECISION

16 February 2006 Mr RG Kenny, Member      

Background

1.      Caroline Favelle’s second child, Lincoln, was born on 26 June 2004.  Mrs Favelle was eligible to receive a maternity payment, a form of income support payable under A New Tax System (Family Assistance) Act 1999 (the Act).  On 21 April 2005, a delegate of Centrelink, a statutory authority within the portfolio of the Department of Family and Community Services (the respondent), determined that Mrs Favelle was not entitled to be paid the maternity payment.  That decision was affirmed by an authorised review officer from Centrelink on 22 June 2005 and, in turn, by the Social Security Appeals Tribunal on 12 August 2005.  On 13 September 2005, Mrs Favelle applied for the decision to be reviewed by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2.      Mrs Favelle attended the hearing but was not represented.  Ms S Oliver, from Centrelink’s Legal Services Branch, appeared on behalf of the respondent.

Issues and Legislation

3.      The eligibility criteria for the maternity payment are set out in section 36 of the Act and it is not disputed that Mrs Favelle meets those requirements in this matter.  Nevertheless, Mrs Favelle is not entitled to receive the payment unless she meets the requirements set out in A New Tax System (Family Assistance) (Administration) Act 1999 (the FAA Act). Section 36 of the FAA Act reads:

“Need for a claim

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

4. Section 38 of the FAA Act sets out the procedure for making a claim. Relevantly, it reads:

“How to claim

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

(a)maternity payment ………………in normal circumstances; or

(b)…………….”

(2)       A claim is not effective unless:

(a) the claim :

(i)        is made in a form and manner; and

(ii)       contains any information; and

(iii)      is accompanied by any documents;

required by the Secretary;

5. Restrictions on claiming are set out in section 39 of the FAA Act which includes the requirement that a claim for payment of maternity payment is not effective if it is made later than 26 weeks of, in this case, the birth of Lincoln on 26 June 2004. Pursuant to subsection 41(1) of the FAA Act, if the claim is not effective, it is taken not to have been made.

6.      For the respondent, it was submitted that Mrs Favelle’s claim for maternity payment was received at the Wynnum Centrelink office on 21 April 2005 and that, because this was more than 26 weeks after the birth of Lincoln, the claim was not effective. 

7. Mrs Favelle submitted that she had completed a claim form and forwarded it by mail to the Wynnum Centrelink office approximately one month after the birth of Lincoln. She submitted that, even though this had not been received at the Centrelink office, she had done all she could to make the claim and had done so within the 26 week time-frame and that, therefore, it should be treated as being effective. Mrs Favelle submitted that she was entitled to use the postal service to make her claim and referred to the terms of subsection 29(1) of the Acts Interpretation Act 1901 as supporting her contention that the letter containing her claim form should be taken to have been received by Centrelink in the ordinary course of post.  Mrs Favelle also relied upon Tribunal decisions Duncan and Secretary, Department of Family and Community Services [2000] AATA 858 and Re Secretary, Department of Employment, Education, Training and Youth Affairs and Coward (1997) 49 ALD 698 to support her situation.

8.      Clearly, the issue for the Tribunal is whether or not an effective claim for maternity payment was made by Mrs Favelle.

§  Mrs Favelle’s Evidence

9.      Mrs Favelle said that she had been aware that there was a time-frame of 26 weeks within which her claim had to be made.  She completed a claim form while she was in hospital and obtained the signature of the presiding medical officer to certify the birth of her child.  She did not send the claim form immediately but waited until about a month later after she had received a copy of the birth certificate from the relevant State registrar and she included a copy of this birth certificate with the maternity payment claim form.  She placed the material in an A4-sized envelop and addressed it to a Centrelink box office address. 

10.     One of Mrs Favelle’s concerns was that, when she completed the claim form, she was to provide information about the taxable income of herself and her husband for the 2003/2004 financial year.  She did not have this information at that time and included an estimate of the income levels.  Mrs Favelle said that she received taxation notices of assessment in February 2005 and then realised that the maternity payment had not been made.  Therefore, on 8 April 2005, she contacted a Centrelink call centre where she enquired as to whether she had received the payment.  She said that, as a result of this call, she was sent a claim which she completed on 19 April 2005 and took to the Wynnum Centrelink office on 21 April 2005.  Whilst there, she also completed a second claim form for family tax benefit for the 2004/2005 financial year and both claim forms were lodged on that date.

11.     Mrs Favelle said that, in the period between posting the claim form to Centrelink in approximately July 2004 and telephoning the call centre on 8 April 2005, she had made contact with Centrelink officers on various occasions.  The first of these was in August 2004 when she made a general telephone enquiry without giving her own particulars.  She said that she did not enquire, specifically, whether her claim form had been received but asked whether there was any difficulty in that she had not given her income details on the claim form.  She said that she was re-assured by the Centrelink officer that her claim would be processed once the correct income details had been received.

12.     Mrs Favelle said that she then contacted Centrelink on two occasions in February 2005.  On the first occasion, she called a “1300” number where she spoke to a call centre but was not advised whether her claim had been received and was told that she should contact the Wynnum office.  She then rang the Wynnum office where she gave her details and was advised that the claim had not been received.

§  Evidence of Kirsten Mould

13.     Kirsten Mould has been employed by Centrelink for more than three years and was working at the Wynnum branch as a family assistance officer during the period in question in this matter.  She completed a statement on 1 February 2006 in which she detailed the procedures applicable at the Wynnum office in relation to incoming mail (exhibit 2):

“3.When a new claim is received in the mail at the Wynnum office via Australia Post, the customer service officer who is actioning the mail will date stamp the claim form with the date it was received.

4.If the claim is a new claim for a payment under the Family Assistance legislation, for example a claim for family tax benefit or maternity payment/allowance, the date-stamped claim form is then placed in the FAO Team’s in-tray.

5.The FAO Team’s in-tray is checked continually throughout a day for incoming correspondence.  The FAO officer who clears the in-tray, will immediately ‘index’ all new claims onto the database system and then place the claim form in date order with all other new claims for actioning.”

14.     Ms Mould went on to indicate that the indexing process utilised in the office ensures that there is a record of all new claims.  

Consideration

15.     Mrs Favelle has not given consistent versions of the telephone conversation with the call centre officer in August 2004.  Her evidence to the Social Security Appeals Tribunal was that the officer had advised her that her claim for maternity payment had not been received at that time.  In a written submission to the Tribunal, dated 12 December 2005, Mrs Favelle wrote:

“I called the family assistance ‘1300’ number in August 2004 to check on the progress of my claim for the maternity payment.  I spoke to a call centre operator who told me that my claim for the maternity payment had not yet been received but advised me not to worry because my claim would be processed once Centrelink received my 2003/04 year taxation notice of assessment.”

16.     In her evidence, Mrs Favelle said that she had not enquired of the Centrelink officer whether or not a claim had been received at that time.  On being asked for the reason for not doing so, her response was that she was looking after her two children at the time and there was a lot of background noise in the room.  She also said that she wanted to get a “quick answer” in relation to her taxation situation. In her evidence, Mrs Favelle also gave a further version of what occurred during that conversation when she said that the officer told her that it “may not have been received”.

17.     Mrs Favelle did not make reference to the February contacts with Centrelink  when giving her evidence before the Social Security Appeals Tribunal or in her written submission.  When asked why she had not mentioned this, she said that she had “only just recalled” that she had made those contacts.

18.     On the version of events given by Mrs Favelle in regard to the contact with Centrelink in August 2004 that the officer advised her that the claim form had not been received, the officer could only have obtained that information by gaining access to Mrs Favelle’s files on the computer and this would have been noted in her records with Centrelink.  In evidence were copies of recorded contacts between Mrs Favelle and Centrelink and there is no record of any entry in August 2004.  Similarly, there is no record of any entry in February 2005 when Mrs Favelle said that she did provide her details to an officer at the Wynnum branch.  In her evidence, she said that she was told on that occasion that a claim form had not been lodged.  If that were the case, it would render unnecessary her contact in April 2005 where she again raised the issue of whether her claim had been received.  In cross-examination, Mrs Favelle said that she simply wanted confirmation in April, even though she had already been told that a claim had not been received.  The only screen printout reflecting contact between Mrs Favelle and Centrelink is that relating to a conversation on 8 April 2005.  In evidence was a letter, dated 8 April 2005, which was sent to Mrs Favelle enclosing the relevant claim form. 

19. The significant inconsistencies in Mrs Favelle’s evidence make her an unreliable witness and I do not accept her evidence that she made contact with Centrelink in either August 2004 or February 2005. Further, I do not accept that she posted a claim form to Centrelink in July 2004. Nevertheless, even if Mrs Favelle did post the claim form in July 2004, I am still satisfied that this was not an effective claim. To be effective, the claim must be made in accordance with the requirements of subsection 38(2) of the FAA Act. Interestingly, the FAA Act does not include a requirement that, in order for the claim to be effective, it must have been received by or lodged with the respondent. In that way, it differs from the Social Security (Administration) Act 1999 which, in section 16 thereof, sets out the means of making a claim for the purposes of a social security payment.  It requires that the claim be lodged and subsection 16(4) of that Act provides that the written claim is lodged by being delivered in an appropriate Centrelink office. 

20. I have noted Mrs Favelle’s reliance upon subsection 29(1) of the Acts Interpretation Act 1901 which reads:

“Meaning of service by post

(1)Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

21. That provision is usually relied upon by a party in the respondent’s position to enable it to deem that documentation has been served on a person, typically, in the applicant’s position. A pre-condition to the operation of that provision is that there be an act authorising or requiring that any document be served by post. There is nothing in the FAA Act which provides any authorisation or requirement that the claim form may be posted to Centrelink, although I accept that this is a legitimate method of forwarding material to a Centrelink office. However, there is no copy of any claim form or of an envelope and I cannot be satisfied that any letter was properly addressed and prepaid for post. In any event, I am satisfied that there is evidence from the respondent that the letter was not delivered. Evidence was given by Ms Mould that all mail received at the Wynnum office is routinely processed, receipted and noted on electronic files. In the absence of any such record for a claim form from Mrs Favelle, I am satisfied that the respondent has discharged any burden that it has under subsection 29(1) of the Acts Interpretation Act 1901.

22.     As noted above, Mrs Favelle relied upon Tribunal decisions Duncan and Secretary, Department of Family and Community Services [2000] AATA 858 and Re Secretary, Department of Employment, Education, Training and Youth Affairs and Coward (1997) 49 ALD 698. In Duncan’s case, the Tribunal determined that a claim for youth allowance had been properly made even though there was no evidence of its receipt by the relevant office.  In that case, the Tribunal was able to find that the letter had been posted. In this matter, I am not able to be so satisfied.  In Coward’s case, the Tribunal held that the terms of subsection 29(1) of the Acts Interpretation Act 1901 were met in the case of a letter sent by the Commonwealth Employment Service (CES) to a recipient of newstart allowance.  There, the Tribunal had evidence before it of the office systems of CES in relation to the handling of outgoing mail and was able to find that the relevant letter had been sent by pre-paid post.  Again, I am not able to be so satisfied in this matter.

23. Ms Oliver referred to the Family Assistance Guide which, despite the absence of reference to lodgement in the Act, describes the need for lodgement to take place before a claim can be effective. While I am satisfied that the terms of any guidelines cannot conflict with the terms of the legislation on which they are based, I am satisfied that proper administration of the FAA Act requires the interpretation that the claim must be received by a Centrelink office in order for it to be an effective claim. Despite the fact that the FAA Act makes no provision for the documents to be received by the respondent, I am satisfied that the claim form will not be effective unless it is actually received by a Centrelink office.

Decision

24.     The Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:   Jeff Mills

Legal Research Officer

Date/s of Hearing  2 February 2006
Date of Decision  16 February 2006         
The Applicant appeared in person
For the Respondent                  Ms S Oliver, Departmental Advocate