Gandy and Secretary, Department of Family and Community Services

[2004] AATA 246

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 246

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/1376

GENERAL ADMINISTRATIVE DIVISION

Re:ASHLING MARIE GANDY

Applicant

And:SECRETARY, DEPARTMENT OF

FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             1 March 2004

Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

SOCIAL SECURITY - maternity immunisation allowance - requirement to complete standard vaccinations before child’s second birthday

A New Tax System Family Assistance) Act 1999   ss 4, 5, 6, 7, 39(1), 39(2)

REASONS FOR DECISION

1 March 2004  G.D. Friedman, Member

1.      This is an application by Ashling Marie Gandy (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 3 December 2003.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 10 October 2003 to refuse the applicant’s claim for maternity immunisation allowance.   

2.      At the hearing on 1 March 2004 the applicant represented herself.  Ms K. Navarro, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1‑T10), plus two exhibits (Exhibits A1 and A2) lodged by the applicant.

BACKGROUND

4.      The applicant receives family tax benefit in respect of her daughter, Hannah, who was born on 5 May 1998.   Hannah received her first immunisation but did not receive all the immunisations prescribed in the standard vaccination schedule before her second birthday.

5.      On 15 June 2002 Centrelink decided to reject the applicant's claim for maternity immunisation allowance and advised her that she did not qualify for maternity immunisation allowance.  On 10 October 2003 an authorised review officer affirmed the decision.      

6.      On 17 October 2003 the applicant sought review of the decision by the SSAT.  Following the SSAT decision to affirm the Centrelink decision, the applicant lodged an application with the Tribunal on 18 December 2003 for review of the SSAT decision.

7.      The issue before the Tribunal is whether the applicant meets the criteria for the grant of maternity immunisation allowance.

EVIDENCE

8.      The applicant gave oral evidence that she arranged for the first immunisation for her daughter at Sale.  This was the closest town to the farm where she had settled after arriving from overseas with her husband and two children.  She said that Hannah developed a rash and therefore she decided to delay the remaining immunisations.  The applicant said that later, when she inquired about the maternity immunisation allowance, Centrelink informed her that she was not eligible because the prescribed immunisations had not been carried out before Hannah's second birthday.  The applicant told the Tribunal that ultimately all immunisations were completed, and the delay was due to her concerns for Hannah's welfare.  She said that she should not be penalised for acting in her daughter's interests.

9.      The applicant explained that on 6 January 2000 there was a burglary at her farm, and that she and Hannah were the victims of the crime.  She produced information about the event (Exhibit A1) and documentation from the Victims of Crime Assistance Tribunal (Exhibit A2).  The applicant said that she was unable to obtain access to her personal possessions, so she was not made aware from any documents or by any person that her daughter’s immunisations would have to be completed by 5 May 2000.

10.     In respect of legislative requirements, the applicant acknowledged that the relevant Act contained specified time limits, but she said that the legislation should be changed to allow for exceptional circumstances such as had occurred in her case.

CONSIDERATION OF THE ISSUES

11. Section 39 of the A New Tax System (Family Assistance) Act 1999 (the Act) sets out the qualifications for eligibility for maternity immunisation allowance:

39.(1)      An individual is eligible for maternity immunisation allowance in respect of a child in any of the 3 cases set out in this section.

39.(2)      First, an individual is eligible for maternity immunisation allowance in respect of a child who is alive at the end of 18 months after the date of the child’s birth if:

(a)the Secretary is satisfied that the child meets the immunisation requirements set out in section 6 on any day before the child turns 2; and

(b)on the later of the following days (the qualifying day):

(i)the day the child turned 18 months;

(ii)the earliest day to which paragraph (a) applies;

one of the following applies:

(iii)the child is an FTB child of the individual and maternity allowance has been paid in respect of the child;

(iv)the individual is eligible for family tax benefit in respect of the child and the individual’s Part A rate is greater than nil.

12. Section 39(2) is relevant in this case. Sections 4 to 7 of Division 2 of the Act set out the immunisation requirements referred to in s 39(2)(a) of the Act. These include a provision that the child is immunised in accordance with the standard vaccination schedule (s 6(2)) or certification of a conscientious objection is declared (s 6(3) and (4)).

13. The Tribunal finds that the applicant's daughter was not immunised in accordance with the standard vaccination schedule before her second birthday, and that no certification of conscientious objection was declared. Therefore, the applicant does not satisfy the requirements of s 39 of the Act for eligibility for maternity immunisation allowance. There is no discretion in the legislation to consider other factors.

DECISION

14.     For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  1 March 2004

Date of decision:  1 March 20043
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms K. Navarro, Centrelink