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

[2008] AATA 937

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 937

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2766

GENERAL ADMINISTRATIVE DIVISION		)
Re		EVAN JONES

Applicant

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

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date21 October 2008

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

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

Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits & Allowances – baby bonus – eligibility for baby bonus dependent upon parent being eligible for family tax benefit – claim not effective if made after 26 weeks – no extension of time limit – decision under review affirmed.

A New Tax System (Family Assistance) Act 1999 ss21, 22, 36

A New Tax System (Family Assistance) (Administration) Act 1999 ss36 – 39, 41

REASONS FOR DECISION

21 October 2008 Dr M Denovan, Member    

INTRODUCTION

1.      Mr Evan Jones’ son was born in Thailand on 30 May 2007. When Mr Jones returned to Australia with his son in January 2008 his application for baby bonus was rejected.

DECISION UNDER REVIEW

2.      A decision made by Centrelink on 30 January 2008 which rejected Mr Jones’ claim for baby bonus.

ISSUE

3.      I have to decide whether the applicant is entitled to be paid the baby bonus in respect of his son, born 30 May 2007[1].

[1] T2 ,folio 3.

BACKGROUND

4.      Mr Jones contacted Centrelink regarding his intention to claim family tax benefit and baby bonus for his son on 30 January 2008[2].

[2] T7, folio 30.

5.      In a decision dated 30 January 2008 Centrelink rejected Mr Jones’ claim for baby bonus[3].

[3] T13, folio 46.

6.      Mr Jones was dissatisfied with this decision and requested a review. The decision was affirmed on 15 February 2008 by the original decision maker, and on 20 February 2008 by an authorised review officer[4].

[4] T17, folio 55.

7.      On 22 February 2008 Mr Jones appealed to the Social Security Appeals Tribunal[5], and on 26 May 2008 the Social Security Appeals Tribunal affirmed the original decision[6].

[5] T22, folio 61.

[6] T2, folio 2.

8.      On 23 June 2008 Mr Jones appealed to the Administrative Appeals Tribunal[7].

[7] T1, folio 1.

LEGISLATION

9. The relevant legislation is found at ss 21, 22 and 36 of the A New Tax System (Family Assistance) Act 1999 (‘the FA Act’) and ss 36 through 39 of the A New Tax System (Family Assistance)(Administration) Act 1999 (‘the Administration Act’).

10. Sections 36(1) and 36(2) of the FA Act state when a parent of a child is eligible for baby bonus in normal circumstances.

11. Section 36(2)(b) provides that, amongst other things, a parent’s eligibility for baby bonus is dependent upon the parent being eligible for family tax benefit (FTB).

12. Section 21 of the FA Act states when a parent is eligible for family tax benefit in normal circumstances. Section 21(1)(a) states that a person must have at least one FTB child to be eligible.

13. Section 22 of the FA Act states the requirements that must be considered when determining when a child is a FTB child of a parent.

“s22 (2) The individual is an FTB child of the adult if:

(a) the individual is aged under 18; and

(b) the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; and

(c) the individual is in the adult's care; and

(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.”

14.     The Administration Act states the manner in which a claim for baby bonus is to be made and states any restrictions that apply to such a claim.

15. Section 36 of the Administration Act requires that a claim for baby bonus proceed in a certain manner and that it be subject to certain time limits. Section 39 of the Administration Act provides specific restrictions upon claiming baby bonus. In particular, s 39(2) states that a claim for baby bonus for a child other than an adopted child, is not effective if it is made later than 26 weeks following the birth of an FTB child.

EVIDENCE OF THE APPLICANT

16.     Mr Jones gave evidence at the hearing and the following is the gist of what he said. Mr Jones said that he understands that he does not qualify for baby bonus. Mr Jones explained that he was not aware of the legislative requirements necessary to qualify for baby bonus until he returned to Australia with his son, as he was living in Bangkok when his son was born.

17.     Mr Jones did not bring his son to live in Australia until he was old enough to stop breast feeding. As Mr Jones’ wife has not been granted a visa to live in Australia it was not possible to bring his son to Australia until January 2008.

18.     Mr Jones feels that the legislators did not contemplate his circumstances and he intends to appeal to the ombudsman when this Tribunal affirms the decision under review.

19.     Mr Jones anticipates that his wife will be granted a visa some time in the future. He intends to work, and he wishes to pay bond on a premises suitable for his family. Mr Jones will also need to purchase a car. For these reasons he feels that the baby bonus would make a considerable difference to his being able to set up a financially independent existence in Australia.

FINDINGS OF THE TRIBUNAL

20. Mr Jones is legally responsible for the day to day care welfare and development of his son. His son is in his care, living with him, and under the age of 18. His son is therefore an FTB child of Mr Jones, and Mr Jones is eligible for baby bonus in normal circumstances, as he satisfies the requirements of section 22 of the Act.

21.     Mr Jones' son was born on 30 May 2007, and the claim was taken by Centrelink to have been lodged on 30 January 2008[8]. The claim was ineffective because it was not made within 26 weeks following the child’s birth[9].

[8] T7, Folio 30.

[9] A New Tax System (Family Assistance) (Administration) Act 1999 s 39.

22.     While a provision exists to extend the time period within which a claim for baby bonus can be effective[10], in circumstances where severe illness is associated with the birth of the child, no basis exists to extend the time period in this instance.

[10] A New Tax System (Family Assistance) (Administration) Act 1999 s 39(3).

23.     A claim that is not effective is one taken not to have been made[11]. As the only way that a person can be entitled to payment of baby bonus is to make a claim, Mr Jones does not qualify for baby bonus for his son.

[11] A New Tax System (Family Assistance) (Administration) Act 1999 s 41(1).

CONCLUSION

24.     Mr Jones does not qualify for baby bonus for his son born on 30 May 2007.

FINDING OF THE TRIBUNAL

25.     I affirm the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed:..........................[Sgd]....................................................
  Elizabeth Young, Research Associate

Date/s of Hearing  1 October 2008
Date of Decision  21 October 2008
For the Applicant  The Applicant was self represented
Fr the Respondent  Ms R Knight, departmental advocate