Jackman and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 224

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 224

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5369

GENERAL ADMINISTRATIVE DIVISION		)
Re		TRACEY JACKMAN

Applicant

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

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date20 March 2008

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefore remits the matter to the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs for the apportionment of Maternity Payment in accordance with s 37(3) of the A New Tax System (Family Assistance) Act 1999.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – family tax benefit – maternity payment – whether there are special circumstances that prevented the applicant from making an application for review - whether the applicant is eligible for maternity payment in respect of her child – decision set aside and remitted back to the department for the apportionment of maternity payment.

A New Tax System (Family Assistance)(Administration) Act 1999 (Cth)

A New Tax System (Family Assistance) Act 1999.

SAAN v Secretary, Department of families, Community Services and Indigenous Affairs [2007] AATA 1448

Re Beadle and Director-General of Social Security [1984] 6 ALD 1

REASONS FOR DECISION

20 March 2008 Mr S Karas, AO, Senior Member

INTRODUCTION AND BACKGROUND

1.      Tracey Lee Jackman (the applicant) applied to the Administrative Appeals Tribunal (the Tribunal) on 6 November 2007 for a review of a decision made at Centrelink on 5 April 2005 not to pay the applicant a Family Tax Benefit (FTB) and a Maternity Payment (MPY) following the birth of her child at the Redlands Hospital.

2.      On 19 July 2007, an Authorised Review Officer of Centrelink reviewed this matter and found that the applicant could not be paid MPY as the review (sought by the applicant on 10 April 2006) was outside the 52 weeks review period in accordance with ss 109D(1) of the A New Tax System (Family Assistance)(Administration) Act 1999 (the Family Assistance (Admin) Act).  The Authorised Review Officer found that her child was an FTB child and that the applicant was eligible to be paid FTB for the period 24 March 2005 to 29 March 2005 while she had legal care of her child.

3.      The applicant applied to the Social Security Appeals Tribunal (SSAT) on 26 July 2007 for a review of the Authorised Review Officer’s decision.  On 26 September 2007 the SSAT affirmed the decision of Centrelink made on 5 April 2005, as varied by the Authorised Review Officer, to pay the applicant FTB but not MPY in respect to her child.  The applicant then applied to this Tribunal for review.

4.      It appears that after the birth of the applicant’s child, hospital staff raised concerns for her safety following some incidents and episodes there.  On 30 March 2005 a Temporary Assessment Order was granted to the Department of Child Safety giving it temporary custody of the child.  The child was transferred from the Redlands Hospital to the Mater Children’s Hospital, and on 31 March 2005 a Centrelink social worker was advised that the child was in the care of the Department of Child Safety.  On 1 April 2005, the applicant lodged a claim for FTB and MPY in respect of the child that was rejected by Centrelink, on the grounds that the child was not in the applicant’s care within 13 weeks of her birth.  The applicant was advised of the decision to reject her claim and her rights of review in a letter from Centrelink dated 5 April 2005.  The applicant contacted Centrelink on 10 April 2006 disputing the rejection of her claim.

5. A hearing of this matter was held in Brisbane on 27 February 2008. The applicant appeared with the child’s father Shane Patrick Popp and was not legally represented. Ms M Brazier appeared for the Secretary, Department of Family, Housing, Community Services and Indigenous Affairs (the respondent). The Tribunal had before it the T documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with other documents as follows:

·An affidavit by a Child Safety Officer filed in the Children’s Court of Queensland enclosed under cover of the respondent’s letter 5 December 2007.  (This was a more complete copy of the affidavit by the Child Safety Officer contained in the T documents);

·The respondent’s Statement of Facts and Contentions enclosed under cover of its letter dated 1 February 2008;

·Some information sent to the applicant by the respondent provided by the Department of Child Safety under cover of the respondent’s letter 21 February 2008;

·An undated statement by the applicant’s mother Lynette Kay Jackman; and

·A copy of the Birth Certificate for the child dated 13 January 2006.

ISSUES

6.      The Authorised Review Officer and the SSAT found that the decision in relation to FTB is an excepted decision in accordance with ss 109D(3) of the Family Assistance (Admin) Act.  However, the respondent submits that the decision to reject MPY is not an excepted decision and that the applicant’s request for review of that decision is out of time in that it was not made until after the passing of 52 weeks from the original Centrelink decision in April 2005.  The issues for the Tribunal to determine are:

·     Whether there were “special circumstances” that prevented the applicant from making an application for review of Centrelink’s decision within 52 weeks of being notified of the decision to reject her claim for MPY; and

·     Whether the applicant in the circumstances is eligible for payment of MPY in respect of her child.

EVIDENCE

7.      At the hearing the applicant and Mr Popp gave evidence to the effect that:

·     The applicant was entitled to the MPY payment as she had endured the pregnancy, gave birth to the child and that the Department only had interim custody of the child while in hospital.

·     The applicant and Mr Popp had seen the child at Silky Oaks Children’s Haven.

·     The applicant is unable to read or write and depends on her mother’s assistance.

·     The applicant has bipolar disorder, sees a psychiatrist regularly and is on medication.

·     She and Mr Popp are together now and have lived at various addresses in the past.

·     The child, is now in foster care although they see her every second week.

·     The applicant had her mother assist her with the application for the “baby bonus”.

·     The applicant recalls receiving the Centrelink letter of 5 April 2005 but could not “understand the 52 weeks period”.  She was rejected for the $3000 payment.

·     She and Mr Popp cannot understand why she was not paid the bonus.  She gave birth and looked after the child, until the child suffered some difficulties and was placed in the nursery, and then transferred to the Mater Hospital.

·     Mr Popp insisted that the child was not in the Department’s care but in the hospital’s care and that the payment should have gone to the applicant.

·     The applicant stated she had half custody of her child while she was in hospital before her discharge in late March 2005.

·     Both insist that the applicant “should have got the money straight away”.

8.      Counsel for the respondent submitted in part that the child was only in the care of the applicant for six days and that it is distinguishable from SAAN v Secretary, Department of Families, Community Services and Indigenous Affairs[1]  where the child there was in its mother’s continual care.  As well, it was submitted that the applicant was properly advised of her review rights and the 52 weeks review limit by its letter 5 April 2005 that was received by the applicant.  The respondent urged the Tribunal not to exercise its discretion in favour of the applicant given the circumstances, submitting that there were no special circumstances to extend the time for applying for review under s 109D(6) of the Family Assistance (Admin) Act.

[1] [2007] AATA 1448 (20 June 2007).

CONSIDERATION

9.      The Tribunal accepts the earlier findings of the Authorised Review Officer and the SSAT in relation to FTB and the applicant in this matter.

10.     The MPY (baby bonus) is intended as a one-off payment to assist families with the extra costs incurred at the time of birth or adoption of a child.  Section 109D(1) of the Family Assistance (Admin) Act provides that an application for review under ss 109A(1) of any decision other than an excepted decision must be made no later than 52 weeks after the applicant is notified of the decision.  The Tribunal finds that the applicant was advised of the respondent’s decision to refuse the MPY payment by letter dated 5 April 2005.  The applicant received that letter.  The request for review by the applicant on 10 April 2006 was not within 52 weeks of the notification of that decision and therefore was “out of time”.  However, there are some exceptions to the 52 week rule.  Section 109D(2) of the Family Assistance (Admin) Act provides that the time for seeing review may be extended where there are special circumstances preventing a person from seeking review.

11.     The Tribunal notes that there appears to be a history of abuse, breaches of Court Orders and a general incapacity or inability of the parents (the applicant and Mr Popp) to care for the child.  Following the child’s birth it experienced health problems and was soon transferred from the Redlands Hospital to the Mater Hospital and care was placed in the Department of Child Safety.  After the applicant’s discharge from hospital further difficulties were encountered by her and Mr Popp.  The Tribunal finds that the child was in the applicant’s care for some six days while in hospital.  The Tribunal accepts the evidence that she is unable to read or write now (even though an occupational therapist notes in August 1993 that she could “read and write adequately”) and that her mother assists her in this regard.  The applicant also has had mental and other problems for some time now.  “Special circumstances” as referred to in ss 109D(2) is not defined.  However the Tribunal in Re Beadle and Director-General of Social Security[2]  when referring to this subsection noted that it is not to

“… say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special”.

[2] [1984] 6 ALD 1 at 3

12.     On balance, the Tribunal finds in the circumstances of this case that there are unusual or uncommon circumstances for the applicant to qualify for an extension of time as referred to in ss 109D(2) beyond the 52 week time limit and that the application for review of Centrelink’s decision of 5 April 2005 made by her on 10 April 2006 be accepted as falling within the special circumstances referred to in the legislation.

13.     Section 25 of Family Assistance (Admin) Act provides so far as is relevant :

“(1) If, after a claimant becomes entitled to be paid family tax benefit by instalment:

(a) anything happens that causes the claimant to cease to be eligible for family tax benefit on the days for which the claimant will become entitled to be paid the benefit under the determination concerned, or to become eligible for a daily rate of family tax benefit that is less than that specified in the determination; or

(b) the claimant becomes aware that anything is likely to happen that will have that effect;

the claimant must, in the manner set out in a written notice given to the claimant under section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.”

14.     Counsel for the respondent submitted at the hearing that “in the event that the Tribunal does find special circumstances and does exercise that discretion…it’s appropriate to remit the matter back to the Secretary to process the claim and that way, if there are any other third party interests that can the considered then”.  The Tribunal accepts that submission in the circumstances of the case.

15.     The Tribunal notes that legal responsibility for the child was granted to the Department of Child Safety by way of a Temporary Assessment Order on 30 March 2005.  The child was in the applicant’s care for six days while in hospital from her birth until the Order of 30 March 2005.  Therefore the Tribunal finds that the applicant is entitled to MPY for a period of six days following child’s birth.

CONCLUSION

16. The Tribunal sets aside the decision under review and in substitution therefore remits the matter to the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs for the apportionment of MPY in accordance with ss 37(3) of the A New Tax System (Family Assistance) Act 1999.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed:         .....................................................................................
  E. Young, Research Associate

Date of Hearing  27 February 2008
Date of Decision  20 March 2008
Applicant  Ms T Jackman, unrepresented
Respondent  Ms M Brazier, departmental advocate