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

[2006] AATA 231

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 231

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/668

GENERAL ADMINISTRATIVE DIVISION		)
Re		JUSTINE HODGES

Applicant

And SECRETARY, DEPARTMENT
OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date13 March 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 – not prevented from making claim by serious illness associated with birth - 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, 39, 41

Hammoud and Secretary Department of Family and Community Services [2006] AATA 174

REASONS FOR DECISION

13 March 2006 Mr RG Kenny, Member      

Background

1.      Justine Hodges’ son, Clayton, was born on 23 September 2004.  Mrs Hodges 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 16 June 2005, Mrs Hodges lodged a claim for that payment and, on 30 June 2005, a delegate of Centrelink, a statutory authority within the portfolio of the Department of Family, Community Services and Indigenous Affairs (the respondent), determined that Mrs Hodges was not entitled to be paid the maternity payment.  That decision was affirmed by an authorised review officer from Centrelink on 15 August 2005 and, in turn, by the Social Security Appeals Tribunal on 22 September 2005.  On 25 October 2005, Mrs Hodges applied for the decision to be reviewed by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2.      Mrs Hodges spoke to the Tribunal by telephone.  She was not represented.  Ms Jasmine Forsyth, from Centrelink’s Legal Services Branch, appeared on behalf of the respondent.

Issues and Legislation

3. The eligibility requirements for the maternity payment are set out in section 36 of the Act. It is not disputed that Mrs Hodges meets those requirements or that she made a claim for it on 16 June 2005. Nevertheless, Mrs Hodges is not entitled to receive the payment unless she meets the additional requirements set out in A New Tax System (Family Assistance)(Administration) Act 1999 (the Administration Act). Restrictions on claiming are set out in section 39 of the Administration Act which includes the requirement that a claim for maternity payment is not effective if it is made later than 26 weeks of, in this case, the birth of Clayton on 23 September 2004. Pursuant to subsection 41(1) of the Administration Act, if the claim is not effective, it is taken not to have been made. Section 36 of the Administration Act precludes entitlement to parenting payment in the absence of a claim.

4.      For the respondent, it was submitted that Mrs Hodges’ claim for maternity payment was received at the Nambour Centrelink office more than 26 weeks after the birth of Clayton and that, therefore, the claim was not effective. 

5.      Mrs Hodges conceded that the claim was made outside of the 26 week period but she described various health-related limitations imposed on her which prevented her from making the claim in a timely manner.  To that end, Mrs Hodges relied on subsection 39(3) of the Administration which reads:

“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.”

6.      The issue for the Tribunal is whether or not Mrs Hodges’ circumstances are embraced by that provision.

Mrs Hodges’s Evidence

7.      Mrs Hodges was provided with a parenting payment claim form whilst she was in the hospital after giving birth to Clayton.  It was given to her by the midwife who explained that she would need to lodge it but that she had plenty of time to do so.  Mrs Hodges did not read the document and, at all material times, believed that she would not be able to make a claim until she had lodged her income tax return for the 2003/2004 financial year. This was because she understood the midwife to have given her that advice.  Mrs Hodges lodged her tax return in June 2005 and, shortly thereafter, she lodged her claim with Centrelink.  Mrs Hodges had a difficult birth with her son and was required to undergo an emergency Caesarean Section after a lengthy labour.  She wasn’t released from hospital for ten days and she said that she had difficulty walking because she had problems with her pelvis and lower back.  She was not permitted to drive her car for two months and relied upon the assistance provided by her mother-in-law and other family friends to provide transportation for her when this was required. She said that this was, on occasions, such as making visitations to her medical practitioners.  Mrs Hodges said that her husband had his own business and was unable to take time away from it in order to provide any assistance during normal working hours.  She said that when she was required to attend to Clayton, she had done so by lying with him on the floor.

8.      Mrs Hodges agreed that there were various entries in the claim form which alerted the reader to the need to make a claim within 26 weeks of the birth of the child.  However, she confirmed that she had not read the form until June 2005 when she completed it for lodgement and this was more than 26 weeks after Clayton was born.

other evidence

9.      Dr Morris provided a medical report, dated 7 September 2005, in which he wrote that Mrs Hodges had been under his care during the postnatal period for investigation in respect of “extreme fatigue and night sweats”.  He said that no cause had been found for her symptoms but said that she had been exceedingly distracted by this problem since the birth of the baby.  Also in evidence was a report, dated 6 September 2005, from physiotherapist Stephen Bofinger.  Mr Bofinger wrote that Mrs Hodges had attended upon him for treatment between 8 December 2004 and 11 March 2005 for “acute low back pain related to a left sacroiliac joint instability following childbirth”.  On 15 August 2005, a Centrelink officer spoke with Mrs Hodges by telephone and completed a minute of the conversation which revealed that Mrs Hodges had described health problems after Clayton’s birth but also had stated that the main reason she had not lodged in time was because she was told by a midwife that she had to do her taxation returns before the claim could be lodged.

Consideration

10.     No guidance is provided in the Administration Act as to the meaning of the phrase “severe illness associated with the birth of the child concerned.”  The respondent referred to the decision Hammoud and Secretary Department of Family and Community Services [2006] AATA 174 where the Tribunal noted that the Explanatory Memorandum for the Act gave “postnatal depression” as an example of “severe illness” for the purposes of subsection 39 (3) of the Administration Act. In that case, the Tribunal found that Mrs Hammoud did have a severe illness associated with the birth of her child and that she was prevented thereby from making a claim within the relevant time frame. The Tribunal also noted that the claim was only one working day late and an extension of time was granted. In Mrs Hodges case, it is not entirely clear from what specific condition she suffered but I am satisfied that she underwent a difficult period in the months following the birth of Clayton. Nevertheless, I am also satisfied that her health problems were not responsible for her being unable to make a claim. She was able to drive her car after two months and was, from time to time, out of her house even before that in the company of family and friends. In her case, I am satisfied that her medical conditions were not responsible for lodgement approximately 38 weeks after Clayton was born and that the reason for that delay was that she was unaware of the need to make the claim within 26 weeks.

Decision

11.     The Tribunal affirms the decision under review.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:          K Donohue

Administrative Assistant

Date/s of Hearing  3 March 2006
Date of Decision  13 March 2006
The Applicant appeared by telephone
For the Respondent                  Ms J Forsyth, Departmental Advocate