Herbert and Secretary, Department of Families Community Services and Indigenous Affairs

[2007] AATA 1962

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1962

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3397

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHELLE HERBERT

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date16 November 2007

PlaceBallina

Decision The Tribunal sets aside the decision under review and substitutes the decision that maternity payment is payable to the applicant.

..............................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – maternity payment – claim lodged within 26 week time period – claim subsequently lost - decision under review set aside

A New Tax System (Family Assistance) (Administration) Act 1999 – ss36, 38(2), 39(2)(a)

Rummeny and Secretary Department of Family and Community Services [2003] AATA 803

REASONS FOR DECISION

16 November 2007   M J Carstairs, Senior Member

1.      On 13 June 2006 Ms Michelle Herbert gave birth to a daughter, Isarbella, in Sri Lanka. Centrelink has refused payment of a lump sum maternity payment to Ms Herbert. Ms Herbert would be entitled to that payment except that Centrelink’s first record of a claim for payment is January 2007. This falls outside the 26 weeks allowed for making a maternity payment claim. 

2.      Ms Herbert says she made an earlier claim which she hand-delivered to the Fremantle Centrelink office in October 2006, within 26 weeks of Isarbella’s birth.  Ms Herbert then departed for Sri Lanka on 1 November 2006, not returning to Australia until 30 December 2006.

3.      The question that I have to decide is whether there was a valid maternity claim made within 26 weeks of Isarbella’s birth.  The review raises no other relevant grounds.  Ms Herbert has referred to being quite unwell after the birth of Isarbella, but her case, nevertheless, is that she was able to lodge a claim within the time limits.  In those circumstances, it does not seem to me that she can avail herself of discretionary relief on the grounds of illness.

EVIDENCE ABOUT LODGING A CLAIM IN OCTOBER 2006

4.      The 26 week period after Isarbella’s birth within which to lodge a claim expired on 12 December 2006.

5.      Ms Herbert and Isarbella returned to Australia on 21 October 2006.  She said she went to Fremantle on her return as she had some family there, and she had a number of matters to attend to, including obtaining a replacement Medicare card that included Isarbella’s name.  Ms Herbert was intending to stay in Australia, despite Isarbella’s father remaining in Sri Lanka.  She was looking to obtain income support by claiming parenting payment from Centrelink. 

6.      Ms Herbert said that she stayed at a backpacker’s hostel in Fremantle, within walking distance of the Centrelink office and Medicare office.

7.      Centrelink’s computer records show that on 23 October 2006 Ms Herbert attended the Fremantle office of Centrelink personally and had an interview for parenting payment.  A second computer record (identical in its terms) was made on 30 October 2006.  On each occasion of her attendance at Centrelink it seems that Ms Herbert was served by a Centrelink officer named John, whose identity appears in the records as ‘GNJ’.  Having made contact with Centrelink about her parenting payments Ms Herbert decided she and Isarbella would return to Sri Lanka and left Australia on 1 November 2006.

8.      Ms Herbert returned to Australia on 30 December 2006 and made enquiries about the maternity payments. Investigations undertaken by the Brunswick Heads Centrelink office were made at this time that, revealed that John had ceased working for Centrelink.  File notes of those investigations reveal that other Centrelink officers remembered John as being an experienced and capable officer.  Ms Herbert says that she found him very helpful.

9.      Ms Herbert recalled that John assured her that she was still in time to lodge a claim for maternity payment, and he helped her in this by filling out sections of an online claim form.

10.     I should observe at this point that a Centrelink officer filling out sections of an online claim form is an unusual—indeed an unlikely—occurrence. This aspect of the case troubled the authorised review officer and the Social Security Appeals Tribunal (SSAT). However, the SSAT made further enquiries and concluded that it was possible that a Centrelink officer may have done this for a customer at one of the self-service facilities in the office.

11.     The importance of this aspect of the case is that there was a copy of a partially typed, partially hand-written claim form dated 27 October 2006 in the documents before me[1]. However, this document was not date-stamped as having been received at a Centrelink office.  Ms Herbert maintains that this is a copy of the claim form that John helped her fill out and that she lodged at Centrelink before she departed Australia on 1 November 2006.

[1] See document T20 of the T-Documents.

12.     Ms Herbert said that she was able to photocopy the claim form at the backpackers’ hostel where she was staying.  She said that she has a scrupulous habit—instilled in her by her father— of photocopying important documents. She observed that this practice has stood her in good stead in Sri Lanka, especially after the birth of Isarbella when she needed copies of her documents to obtain a passport in order for both of them to leave the country.

13.     Ms Herbert’s recollection of the circumstances of her lodging the forms at Centrelink in October 2006 was as follows:

·She returned to the office with her forms and attended at the counter, asking for John;

·She was told that he was away at a course;

·She handed in the paperwork for the maternity payment at the counter, but cannot recall whether that counter officer was male or female.

·She then was referred to another desk of Centrelink officer ID CJ667 who Ms Herbert recalled as being dark-haired and female.  Ms Herbert needed to speak to this officer because she had made decided to return to Sri Lanka.  This meant that Ms Herbert needed to withdraw the claim for parenting payment.  There is a computer record for this event taking place on 31 October 2006. 

14.     Ms Herbert believes her maternity allowance claim form was lost after she handed it at Centrelink’s Fremantle office.

15.     In all the circumstances here, I accept Ms Herbert’s evidence regarding the lodgement of the claim form in person.  Ms Herbert had a strong recollection of the sequence of her interactions with John and the other Centrelink officers at the Fremantle office.  She was confident that she could not have mistakenly taken the maternity payment claim form to the Medicare office, which she was also visiting while in Australia.  The unlikelihood of John assisting her by partially completing the claim form was resolved in her favour.  The truth of her evidence was not seriously contested by Mr McQuinlan, who appeared for the respondent.  

16.     I had no oral evidence from the Fremantle Centrelink officers.  However, I agree with the conclusion of the authorised review officer, who stated that after being told that John was regarded as experienced and knowledgeable, it would be unlikely that such an officer, faced with a newborn baby and mother claiming parenting payment, would not ensure the mother had a claim form for maternity payment.

17.     Mr McQuinlan also clarified a point that had troubled the Social Security Appeals Tribunal; namely that there was a computer record dated 3 January 2007 when Ms Herbert attended the Brunswick Heads Centrelink office that noted that in response to the question: “have you lodged the New born/Child …FA004(P) claim form?” Ms Herbert appears to have answered:  “No”.

18.     The SSAT had concluded that in answering “No” Ms Herbert was denying a prior lodgement of any claim, that is, denying that she lodged an earlier claim in October 2006.  However, Ms Herbert explained in her oral evidence that she understood the question she was being asked as solely related to the claim she was about to complete.  In other words she did not understand the question as one asking about her previous claim form.

19.     Ms Herbert’s evidence in this regard is consistent with her assertion from the start that she had already lodged two previous forms for maternity payment.  She remarked on this by writing on a claim form dated 22 January 2007[2] ‘please note – 2 forms have been filled…’.  She was asked to fill in this claim form  because the one that she had lodged on 5 January 2007[3]  was misplaced at Centrelink.  It was found later, but in the meantime Centrelink had asked Ms Herbert to complete another.

[2] See T10 in the T-Documents.

[3] See T7 in the T-Documents.

LEGISLATION

20.     The relevant legislation in relation to claims for maternity payments is the A New Tax System (Family Assistance) (Administration) Act 1999 (the FAA Act). Section 36 of the FAA Act stipulates that the only way a person can become entitled to be paid maternity payment is to make a claim. To be effective that claim must be in accordance with s 38(2) of the FAA Act, which provides that a claim will only be effective if made in a form and manner required by the Secretary and contains all the information needed, and, under s39(2)(a) will not be effective unless lodged within 26 weeks of the birth of the child.  

21.     As to the first claim, I accept as more probable than not that Ms Herbert completed the first claim form in the way she described and took it personally to the Fremantle office.  I accept her evidence that this form was lodged before she left Australia on 1 November 2006 and it would seem that the lodgement occurred on 31 October 2006, the same day as she withdrew the parenting payment claim.  Ms Herbert’s evidence was not challenged.  Indeed, by his questioning at the hearing, Mr McQuinlan was able to clarify a number of doubtful matters, which, once clarified, lent support to what Ms Herbert said.  I was satisfied that Ms Herbert was correct. 

22.     As I am satisfied that Ms Herbert lodged the claim on 31 October 2006, it follows that Ms Herbert made an effective claim within 26 weeks of Isarbella’s birth.   I concluded that it was more likely than not that the claim form she lodged was misplaced at Centrelink.  Accepting that Ms Herbert lodged her claim within time, it follows that her claim for maternity payment should be granted.

23.     Mr McQuinlan submitted that another possible basis upon which Ms Herbert’s entitlement to maternity payment might be considered was by applying the Tribunal decision in Rummeny and Secretary Department of Family and Community Services[4] where Senior Member Beddoe decided that s15 of the Social Security (Administration) Act 1999 could be applied in circumstances where a person had lodged a claim for family tax benefit which could be treated as an incorrect claim for parenting payment, so as to allow parenting payment to be paid.  Mr McQuinlan invited me to consider whether Ms Herbert’s October 2006 claim for parenting payment (later withdrawn) similarly might be dealt with as an incorrect claim for maternity payment. However, in view of the conclusion I have reached above, there is no need for me to consider the possible application of s15 of the Social Security (Administration) Act.

[4] [2003] AATA 803

DECISION

24.     The Tribunal sets aside the decision under review and substitutes the decision that maternity payment is payable to the applicant.

I certify that the preceding 24 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:         …………………………………………………..
Eleanor O’Gorman, Associate

Date of Hearing  6 November 2007
Date of Decision  16 November 2007

The Applicant was unrepresented
For the Respondent                  Mr R McQuinlan, Departmental Advocate