Hammoud and Secretary, Department of Family and Community Services
[2006] AATA 174
•24 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 174
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/995
GENERAL ADMINISTRATIVE DIVISION ) Re MARIAM HAMMOUD Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member Date24 February 2006
PlaceSydney
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that Mrs Mariam Hammoud is eligible for maternity payment in respect of the birth of her son Zein. [SGD] Rear Admiral A R Horton AO
Member
CATCHWORDS
SOCIAL SECURITY – maternity payment – application lodged after prescribed period – consideration of circumstances for extension to lodge application – extension granted – decision under review is set aside and in substitution thereof the Tribunal decides that the Applicant is eligible for maternity payment in respect of the birth of her son Zein
A New Tax System (Family Assistance) Act 1999 – section 36
A New Tax System (Family Assistance) (Administration) Act 1999 - section 39
Re Zbrog and Secretary, Department of Family and Community Services [2003] AATA 1256
REASONS FOR DECISION
24 February 2006 Rear Admiral A R Horton AO, Member 1. This is an application by Mrs Mariam Hammoud (“the Applicant”) for review of a decision made by the Social Security Appeals Tribunal on 8 July 2005 regarding her claim for maternity payment. The SSAT affirmed the decision of an Authorised Review Officer (“ARO”) dated 7 April 2005 to reject Mrs Hammoud’s claim for maternity payment as it had been lodged outside the relevant period prescribed by the legislation.
2. On 9 July 2004, Mrs Hammoud gave birth by elective caesarean section at Canterbury Hospital to a son, Zein. At that time she had two older children, Daad aged 4 years and Mohammed aged a little over 1 year for whom she was in receipt of Family Tax Benefit (“FTB”). She lodged a claim for maternity payment (and Family Tax Benefit and Maternity Immunisation Allowance) on 10 January 2005. On 14 January 2005 the claim in respect of maternity payment was refused as it had not been lodged within the 26 weeks prescribed in section 39(2) of A New Tax System (Family Assistance) (Administration) Act 1999 (“the Administration Act”).
3. On reconsideration, that decision was affirmed, the decision maker apparently considering that the failure to lodge the claim within the 26 weeks did not result from a “severe illness associated with the birth of the child”, this being the latitude provided under section 39(3) of the Administration Act. The decision was further affirmed by an ARO on 7 April 2005, and by the SSAT on 8 July 2005, resulting in an application for review being made to this Tribunal on 4 August 2005.
4. At a hearing before me on 24 January 2006, Mrs Hammoud was self represented. Mr George Lozynsky, an advocate of Centrelink, represented the Secretary, Department of Family and Community Services (“the Respondent”). Mr A Ghanem, an interpreter fluent in the Arabic language, assisted the Tribunal. The documents (“T docs”) provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence, as was the Respondent’s Statement of Facts and Contentions dated 16 January 2006.
LEGISLATION
5. Section 36 of A New Tax System (Family Assistance) Act 1999 ("the Act") defines when an individual is eligible for maternity payment in normal circumstances, the relevant subsection in this matter being (2) wherein the Applicant is the parent of a child in respect of whom the claim is being made.
6. Section 39 of the Administration Act relevantly provides the period in which a claim for maternity payment can be made and allows for an extension to be granted:
”’Normal circumstances’ maternity payment claim must be made within limited period after birth etc. of child(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
….
Extension of 26 week period in subsection (2)
(3) If the Secretary is satisfied that the claimant was unable to make a claim for payment of maternity payment in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 26 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.”
EVIDENCE
7. The last day in a 26 week period from the date of birth of Zein (9 July 2004) is 7 January 2005. Documentary evidence before me shows that the claim by Mrs Hammoud was marked as received by Centrelink on 10 January 2005, and she did not dispute that she had lodge the claim on that day (albeit that her evidence was that she had sought to lodge a claim on two previous occasions without success). Thus she was 3 calendar days late. Somewhat reluctantly perhaps, Mr Lozynsky agreed with me that her claim was in fact lodged on the first working day after the expiration of the 26 week period – that is, in a practical sense, 1 day late.
8. The evidence of Mrs Hammoud, as given to me and as recorded by the SSAT, is somewhat contradictory at times as regards her family circumstances and the illnesses of her children that may have affected her ability or otherwise to lodge a claim within the appropriate timescale. The SSAT quite correctly saw that the illnesses of her other children were not relevant to the question before it, that is whether her delay in lodging the claim for maternity payment resulted from severe illness associated with the birth of Zein. However, I find this a rather insular view, and her family circumstances are pertinent when reviewing all the issues relevant to the consideration of this matter. Of note, she successfully lodged a relevant claim under the then extant legislation for maternity allowance for her son Mohammed born in Australia on 2 May 2003, although whether she was aware of a time limit in which the claim must be lodged was not established.
9. Mrs Hammoud has three children. Daad was born in Lebanon on 5 June 2000, and was thus 4 years and 1 month of age when Zein was born, and as noted above, Mohammed was born on 2 May 2003 and was thus 14 months old at that time. As given in evidence by Mrs Hammoud, when Zein was born, she was a single mother with 3 young children aged 4 years and under, reliant on help from relatives and neighbours. Mrs Hammoud has been separated from her husband since early 2004, that is before Zein was born. He has not lived at the family home since that time. He was present at Canterbury Hospital at the time of the birth of Zein. During her period in hospital, a neighbour looked after the two older children.
10. Mrs Hammoud gave evidence that on the advice of her doctor, she had an epidural injection prior to giving birth to Zein. That birth was an elective caesarean section for a breach presentation, again on the advice of her doctor. She believed the needle was incorrectly inserted into a nerve with resultant complications, leading her to remain in hospital for about 9 days, suffering from constant headaches and back pain, a sense of confusion and distress. She described her condition immediately following the birth as “could not stand, had to sit down …constant head pain”. She could not feed Zein because of the pain. She stated that she still suffers from headaches and back pain, the latter being particularly noticeable when standing or sitting down. The SSAT decision notes, and Mrs Hammoud confirmed in evidence, that whilst her doctor recommended a further epidural to correct the problems arising from the first, she refused as she understood there was a low chance of more permanent problems arising which could effect her ability to walk.
11. A report from Dr J Sammut, Director ICU/CCU at Canterbury Hospital of 10 May 2005 notes that Mrs Hammoud was admitted on 9 July 2004 and discharged on 16 July 2004. Dr Sammut goes on to state (at T21):
“Her postoperative course was complicated by a prolonged headache. Her headache was thought to be on the basis of a lumbar puncture that was performed for anaesthesia. She required multiple evaluations by the anaesthetic medical staff over the subsequent days of the hospital admission and several strategies were necessary to relieve her headache, all of which were only partially successful. It is certainly recorded at the time of her discharge that she was troubled by an ongoing headache. It is reported in the medical literature that such a headache can persist for up to six months. The longest duration reported for a post-lumbar puncture headache is 19 months, although it is also reported in the literature that 75% will resolve within seven days and 95% within six weeks”
The evidence of Mrs Hammoud is to the effect that the headaches continue to persist, and interfere with her daily life and her responsibilities for looking after her children. From the evidence of Dr Sammut, she clearly did not fit within the 75% resolution category; nor from her own evidence, the 95% criteria.
12. Mrs Hammoud stated that she had twice sought to lodge claims for FTB and the maternity payment within the 26 week period, although she was in ignorance of the need to do so in that time frame. Her sister-in-law helped her complete the forms provided to her by Canterbury Hospital; the need to submit the forms within 26 weeks was not emphasised. Here her evidence differed in the detail and time from that recorded by the SSAT.She informed me that contrary to the history given in the SSAT decision, she took the appropriate forms to Centrelink quite soon after the birth of Zein, but they were rejected because the gender of the baby had been incorrectly entered on the Certificate of Birth. There is no evidence before me in respect of any Centrelink file note or record of such a visit. Mrs Hammoud subsequently obtained a correctly completed Certificate from the hospital. What I presume is that correct copy is at T4 and is dated 6 August 2004. I say “presume” because I find the format could be quite misleading as to exactly which “box” should be ticked to show gender etc. Mrs Hammoud told me that in a subsequent visit to Centrelink, the person behind the desk stated that the form was the wrong form and “tore it up”. Again, there is no evidence before me by way of Centrelink file note to confirm that such a visit occurred.
13. When asked why she had not lodged the correct claim form by 7 January 2005, that is within the 26 week period, Mrs Hammoud confirmed that she was in ignorance of the required time scale for lodging her claim, that she had worries throughout that period with her children, particularly Daad, and her own health mitigated against giving the necessary consideration to the completion and lodgment of the claim forms.
14. I have made earlier reference to the domestic circumstances of Mrs Hammoud. As with her evidence to the SSAT, she told me she had experienced a very difficult period after the birth of Zein. Her own health, particularly with headaches and back pain was not good. She remains on medication to counter those conditions. An ultrasound, of which there is no evidence before me, did not resolve the cause and the problems remain. Suffice that it made it most difficult for her to look after her children and particularly the new baby. She referred to Zein having a chest condition shortly after his birth, thought at the time to be asthma, and now requiring use of a puffer, with regular visits to the family doctor. Mrs Hammoud stated that Zein has since been referred to a pediatrician, but she was not sure whether that had occurred in the 26 week period.
15. Her daughter Daad suffered a kidney infection and was twice hospitalized at Westmead Children’s Hospital. Mrs Hammoud (and Zein) stayed with her on those occasions. Initially Daad proved to be allergic to prescribed medication; she is now better but requiring close monitoring. It was after her condition improved that Mrs Hammoud gave more thought to the completion and lodgment of the claim forms. She was also affected by the death of her 5 year old nephew due to liver failure, this increasing her worries as to the health of her daughter. Suffice that these domestic and family concerns contributed to her failure to submit a timely claim for the maternity payment.
CONSIDERATION
16. The only medical evidence in support of Mrs Hammoud’s evidence is that of Dr Sammut. I place weight on his opinion that her headaches, which were only partly relieved by multiple evaluations and several strategies, arose from the lumbar puncture performed for anaesthesia prior to her breach presentation. I also find value in his comments, based on his research, that such a condition might last for many months. I have already referred to his comment that the headaches were in evidence on her discharge and hence she did not meet the 75% resolution in seven days test. As to whether those headaches continued throughout the 26 week period, and to what affect they had on her ability to meet her family obligations and make the necessary claim for the maternity and other payments, I only have the evidence of Mrs Hammoud as to her health in that period. That evidence has however been consistent.
17. While Mrs Hammoud might understandably be worried about her new born baby, she gave no evidence as to any “severe” illness in respect of Zein in that period. She did refer to health problems with her other children, and whilst the precise nature of the criteria under which an exception to the 26 week rule precludes consideration of their circumstances, I bear in mind that throughout that period, Mrs Hammoud had no real support from her husband, and was bringing up three very young children, a not insignificant task.
18. The absence of corroborating evidence that she had made two approaches to Centrelink to lodge a claim does not assist. Her evidence to the Tribunal as to the circumstances of those two approaches varies in time to that given to the SSAT, but the detail of what occurred is substantially the same. But if her health was not as robust as it might be, then that may be sufficient reason to explain these differences. The point remains however, that the legislation does require that any delay beyond the 26 week period must be due to a severe illness associated with the birth of the child. Whether a delay of but one day is sufficient to negate her claim is a moot point in my view.
19. In the Explanatory Memorandum tabled when the Administration Act was before the House of Representatives in 1999, post natal depression was given as an example of a "severe illness". Severe illness is not defined in either the Act or the Administration Act. The Respondent did not dispute the evidence as regards Mrs Hammoud’s medical problems arising during the birth, but submitted that the illness must be severe and one that prevents a person lodging a claim within the twenty six week period. Neither, in the view of the Respondent, was the case in this matter. The inference was that the person must be incapable of lodging the claim in the required period, and that did not occur. In my view, that would be a harsh interpretation, and lead to the view that a severe illness must be of such magnitude and duration that at no time could an applicant lodge a claim. In my view it would not necessarily fit within the clinical circumstances of a medical condition of post natal depression, that being the example of a severe illness given in the Explanatory Memorandum.
20. "Severe" is variously defined in the Macquarie Dictionary as "harsh; harshly extreme", and "severe illness" is further defined as "grave". In turn, "grave" is variously defined as "momentous; important or critical; involving serious issues". Thus the word "grave" has a series of definitions which would appear to provide some flexibility as to the assessment of the seriousness of an issue or, in the medical context, the condition. That is, whilst an illness might be described as grave when it is seen as a critical condition, seemingly it can also be described as grave when it is serious or important but not necessarily critical. In the view of this Tribunal there is thus some scope for interpretation when considering whether an illness or a medical condition is "severe". Certainly, the interpretation placed on it by the Respondent that the applicant must be "incapable of lodging the claim" during the twenty six week period cannot be considered as reasonable.
21. In reaching this conclusion, I have drawn on the decision in Re Zbrog and Secretary, Department of Family and Community Services [2003] AATA 1256. Subsequent to that decision, which related to maternity allowance, the Government introduced new measures in respect of family allowances and other benefits in the context of the 2004 Budget. That included the introduction of the “$3000 (maternity) payment for both working and non working mothers when they have a child... the tax free lump sum payment will be paid to all mothers, regardless of their family income, who have babies after July 1” (Sydney Morning Herald 12 May 2004). The 2004 Budget papers variously stated “More help for families is a further major instalment in the ongoing reform of the Australian family assistance and tax systems to help families raise their children”. The Budget papers also stated that Maternity Payment is to “provide further help for families at the crucial period around the birth of a child” and importantly (and as reflected in relevant news reports) “this new benefit will be available to all families, regardless of the families income”.
22. On the evidence before me Mrs Hammoud had a difficult period during hospitalisation when giving birth to Zein, and those difficulties continued for the following months. Her evidence is supported by Dr Sammut, who has indicated that the adverse conditions affecting her could be of reasonably long standing. The evidence of Mrs Hammoud has not been refuted, and notwithstanding the paucity of medical evidence over the 26 week period, the circumstances of her health in the months after the birth are considered to meet a reasonable definition of "severe illness", and the Tribunal so finds.
23. The Tribunal therefore sets aside the decision under review, and finds that the Applicant is eligible for Maternity Payment under the provisions of A New TaxSystem (Family Assistance) Act 1999 in respect of the birth of Zein Hammoud on 9 July 2004.
24. As was the case in Re Zbrog (supra), it is not inappropriate to make further comment on the legislation in this matter. Whilst there may well have been good reason to minimise the delays in individuals claiming this benefit, the confining of the exception to “severe illness associated with the birth of the child” only, seems unnecessarily restrictive. It pays no regard to ethnic considerations (and the English language skills of the mother – an issue before me on this occasion) or family circumstances. Some of those factors might have been relevant in this matter were the exception criteria less rigid. The criteria also seems at odds with the concept of beneficial legislation, the emphasis placed on family assistance when the Bills were tabled and reiterated most strongly during the Budget presentation in May 2004 (and that the Budget papers give no time caveat to the statement that “the new benefit will be available to all families”), and the fact that this is a one-off payment. The Tribunal makes these comments in good faith as an observation arising from the consideration of this claim. The Tribunal has not taken these observations into account in reaching a decision, such decision being reached entirely on whether the Applicant can benefit from the exception clause in respect of "severe illness".
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member.
Signed: A. Garcia
AssociateDate of Hearing 24 January 2006
Date of Decision 24 February 2006
Representative for the Applicant self representedAdvocate for the Respondent Mr G Lozynsky
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