Kesavan; Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 1501

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1501

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/405

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And USHA KESAVAN

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date12 December 2006

PlaceSydney

Decision The decision under review is set aside and instead the Tribunal decides to reject Mrs Kesavan’s claim for maternity payment.

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

Ms N Bell  Senior Member

MATERNITY PAYMENT -  Claim Must be Lodged Within 26 Weeks of Birth – Extension Maybe Given Where Sever Illness Associated with the Birth of the Child Concerned has Prevented the Claim – Severe Right and Mild Left Hip Dysplasia – Condition Improved – Full Range of Movement – The Decision under Review is Set Aside and Instead the Tribunal Decides to Reject Mrs Kesavan’s Claim for Maternity Payment.

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

Formosa v Secretary of the Department of Social Security (1998) 46 FCR 117

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Mrs Kesavan is a New Zealand citizen who arrived in Australia in June 2004 on a Malaysian passport.  She had followed her husband who had arrived from New Zealand in January 2004 on a temporary business visa.  When she arrived in Australia, Mrs Kesavan did not have a New Zealand passport.  It was granted after she came to Australia and sent to her here.

2.      Mrs Kesavan’s daughter, Shreeya, was born on 25 November 2004 with severe left and mild right hip dysplasia and had to wear a harness until February 2005 to correct this condition.   Mrs Kesavan also suffered some post natal depression but did not consult a doctor about it.

3.      On 4 January 2004 Mrs Kesavan’s husband, Mr Ravindranath Arunasalam, lodged a claim for maternity payment – a non taxable lump sum payment of $4,100.00 payable to a person entrusted with the care of a newborn child.  Mr Ravindranath’s claim was rejected by Centrelink because, as a holder of a temporary business visa, he did not qualify to receive the payment.  On 12 January 2005 Centrelink asked Mr Ravindranath to have his partner claim instead and to provide her passport with her date of arrival stamped on it.

4.      Mrs Kesavan lodged her claim on 2 June 2005.  However, A New Tax System (Family Assistance) (Administration) Act 1999 provides, among other things, that in order to be entitled to the payment a person must make an effective claim, that is, one lodged within 26 weeks of the child’s birth.  The last day of the 26 week period after Shreeya was born was 25 May 2005.  Subsection 39(3) of the Act provides that the 26 week period may be extended where the Secretary is satisfied that the claimant was unable to make a claim “because of severe illness associated with the birth of the child concerned”.

5.      Centrelink rejected Mrs Kesavan’s claim because it was lodged after the end of the 26 week period.  The Social Security Appeals Tribunal set aside Centrelink’s decision and the Secretary then applied for review of that tribunal’s decision.

issues

6.      Two issues arise for consideration in Mrs Kesavan’s application:

a)        Was an effective claim made within the 26 week period?

b)        If not, should the 26 week period be extended?

effective claim by mrs kesavan within 26 weeks

7.      The only claim made within the 26 week period after Shreeya’s birth was the claim made by Mr Arunasalam.  Mrs Kesavan’s evidence was that Mr Arunasalam did not make the claim on her behalf and was not acting as her agent.  Their practice was simply for the person who had the time available to make any necessary claims to Centrelink.  The claim form lodged by Mr Arunasalam clearly provides his details as required, including his bank account particulars and no bank account details for Mrs Kesavan.

8.      It was suggested that the decision of the Federal Court in Formosa v Secretary of the Department of Social Security (1998) 46 FCR 117 assists Mrs Kesavan because it is authority for the proposition that a written claim for a payment need only be in “substantial compliance” with the requirements of the Act. While that may be so, in this case there simply was no claim, substantially in compliance or not, made by Mrs Kesavan, nor one made on her behalf, within the 26 week period.

extension of 26 week period

9.      While Shreeya was born with severe right and mild left hip dysplasia and wore a harness, her condition had improved by February 2005 and, according to Mrs Kesavan’s evidence, she had a full range of motion and no longer required a harness by March 2005.  Mrs Kesavan described the difficult pregnancy she had with Shreeya and the distress she and her husband experienced when they learned of her condition at birth.  Shreeya’s early months were difficult and special care had to be taken with her. It must have been a very trying time.

10.     However, it could not be said that Mrs Kesavan was rendered unable to claim maternity payment because of Shreeya’s condition, and certainly not unable to claim it for that reason after March 2005.

11.     In any event, Mrs Kesavan’s evidence was that the only reason she could not make the claim was that she did not have her New Zealand passport.  She said she came to Australia on her Malaysian passport and according to question 5 of the claim form she would not have qualified.  Question 5 indicates that, to qualify, a person must be an Australian citizen, a New Zealand citizen who arrived in Australia on a New Zealand passport or the holder of a permanent visa or a certain type of temporary visa.  Mrs Kesavan said she received her New Zealand passport around 20 May.

12.     It follows that there are no grounds for extension of the 26 week period.

decision

13.     The decision under review is set aside and instead the Tribunal decides to reject Mrs Kesavan’s claim for maternity payment.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: ............ [Sanjiv Shah]....................
  Associate

Date of Hearing  11 October 2006
Date of Decision  12 December 2006

Solicitor for the Applicant          Gary Richardson