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

[2010] AATA 683

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 683

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4079

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ross Leslie

Applicant

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

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date8 September 2010

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that the reason for the delay in making the claim was severe illness associated with the birth of William and that as a consequence the baby bonus benefit should be paid.  

......(sgd. G L McDonald)..........

Deputy President

CATCHWORDS

SOCIAL SECURITY- maternity payment - claim out of time - discretion to extend time - beneficial construction of legislation - severe illness associated with birth of child - unable to lodge claim - decision set aside.

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 39(2) and 39(3)

Secretary, Department of Social Security v Cooper (1990) 21 ALD 155

Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 75

Watts v Vickers Ltd (1916) 86 LJKB 177

REASONS FOR DECISION

8 September 2010 Mr G L McDonald, Deputy President

1.      A baby bonus is claimable following the birth of a child provided that the claim is lodged within six months of the birth of the child or a longer period if the claimant was unable to make the claim because of severe illness associated with the birth of the child.  The facts in this case are that William Leslie was born on 1 January 2008 to Mr Ross Leslie and Mrs Grace Leslie.  William was their second child, the first having born approximately a year earlier.

2.      Mr Leslie completed an application headed ”Newborn Child Claim for Family Assistance and Medicare”, and he thinks he lodged it at the Medicare office located at Camberwell.  The form is dated 1 July 2008, but it is stamped as being received by the Medicare office on 7 July of that year.  The Tribunal accepts that a ”claim” for payment of the benefit is not made until the claim form is lodged[1]. Consequently, the claim is this review must be taken to have been made on 7 July 2008. As such, it was made six days beyond the 26 week period set in s 39(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Family Assistance Act).

[1] Watts v Vickers Ltd (1916) 86 LJKB 177at 181.

3. In order to qualify, a claimant must therefore qualify under s 39(3) of the Family Assistance Act, which provides for an extension of the 26 week period. This section is in the following terms:

[i]f the Secretary is satisfied that the claimant was unable to make a claim for payment of baby bonus 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.

4.      Ms Bramley, who represented the respondent, told the Tribunal that the respondent accepted the ”claimant” as being the parents of the child.  In this review, the claimant could therefore be either Mr or Mrs Leslie.  It follows that the respondent therefore looks to the effect that any “severe illness associated with the birth of the child” has on the family unit to determine whether to extend the time in which a claim can be made.  This seems a reasonable approach for the respondent to take.

5.      What constitutes a ”severe illness” is not defined by the Act, but it has been carefully considered by the Tribunal in Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs[2]  After referring to the dictionary meaning and the principle of construing a word to give the same meaning as in other statutory contexts, it concluded that “a ‘severe illness’ is one that is not slight or moderate, but is harsh, serious, grave or extreme”.[3]  The Tribunal then focused on what degree of bad health is connoted by “illness”.  It concluded that,

[t]he severity of illness is a matter of degree.  It is a question of medical fact that must be assessed in the particular circumstances.  It is not something to be assessed by a fixed objective standard but rather must be assessed having regard to the claimant’s particular circumstances….The measure of difficulty specified in the limited terms of the discretion is that the person is unable to lodge a claim because of the severe illness.[4]..

[2] [2007] AATA 75.

[3] Ibid at para 6.

[4] Ibid at para 7.

6.      Mrs Leslie, who was supported by her sister-in-law, spoke to the Tribunal over the telephone.  Her Obstetrician stated that she “lost an excessive amount of blood [following William’s birth], which added to her fatigue.”  The doctor also reported that Mrs Leslie found her pregnancy “extremely tiring”[5].  From this, the Tribunal concludes that Mrs Leslie suffered fatigue prior to William’s birth and that the fatigue was exacerbated as the result of excessive bleeding following his birth.  She told the Tribunal that the blood loss occurred over a two month period following William’s birth.  This is not the same as saying that the fatigue, from which she suffered, ceased at that time. 

[5] Exhibit A1, letter of Dr D Wilkins dated 7 May 2009.

7.      Mrs Leslie also told the Tribunal that she suffered from haemorrhoids, which resulted in her having incontinence whenever she sneezed or coughed.  She told the Tribunal that she was embarrassed by this condition, which she had not even discussed with her husband.  The condition, which she described as being painful, troubled her throughout, and beyond, the six month period following William’s birth.

8.      In her report, Dr Wilkins stated that she ”suspected” that Mrs Leslie suffered from mild post-natal depression.  On behalf of the respondent, it was submitted that a suspicion could not be regarded as a diagnosis.  Dr Wilkins is an obstetrician and not a psychiatrist.  It would, in the Tribunal’s view, be an unwarranted expense, to say nothing of the inconvenience it may cause, for Mrs Leslie to have to obtain a report from a psychiatrist, even although the latter may be the best placed specialist to give a diagnosis of post-natal depression.  The Tribunal accepts that what Dr Wilkins observed was either, or both, post-natal depression and/or fatigue.  Either way, it was a condition having an adverse effect on the Mrs Leslie’s health and was a condition associated with William’s birth.

9.      While Dr Wilkins reported seeing Mrs Leslie at six weeks after William’s birth, the Tribunal accepts that, however described, her condition lasted for a longer period.  Dr Sweeney, the family general medical practitioner, provided a statement that the family had “multiple medical illnesses” which interfered with their ability to make the claim[6].

[6] Exhibit A2, letter of Dr Sweeney dated 27 April 2009.

10.     Mr Leslie was diagnosed as suffering Meniere’s disease prior to William’s birth.  Clearly that diagnosis was not ”associated with” the birth.  Mr Leslie is reported as returning to work as the proprietor of a small business approximately a week after William’s birth.  However, the Tribunal accepts that William’s birth, and the fact that he was sickly child, would have added to the difficulty that Mr Leslie experienced in supporting his wife as well as coping with William.  The Tribunal notes that Dr Wilkins described Mr Leslie as being a supportive husband.

11.     Mrs Leslie told the Tribunal that William had recently been diagnosed as having a thyroglosal cyst, a condition which she said had been present since his birth.  William is to undergo surgery later in September 2010 to have the cyst removed.  She postulated that the condition may explain why William had been a sickly child since birth.  Even though Mrs Leslie’s theory may be the case, the Tribunal is unable, in the absence of medical opinion, to conclude that this is the explanation.  That, however, does not detract from the Tribunal accepting her description of William as being a sickly child.  The Tribunal accepts Mrs Leslie’s explanation that, given her own illness and that of William, the last thing on her and her husband’s minds was the timeliness of making the claim.

12.     What is to be considered a ”severe illness” depends on the circumstances, and it must also be viewed in light of what is sought to be achieved by the grant of a child bonus.  The Act clearly contemplates the bonus as providing assistance to families.  It is beneficial legislation, the terms of which should be generously interpreted so as to give the benefit when possible rather than to withhold it.[7]  There is no one illness which by itself can be described as ”severe”.  However, the following facts:

·the fatigue of the mother, along with a painful and troubling haemorrhoids resulting in some incontinence; and

·a sickly child, who has subsequently been diagnosed as having a congenital thyroglosal cyst,

[7] Secretary, Department of Social Security v Cooper (1990) 21 ALD 155 at 160.

combine to permit the illnesses ”associated” with the birth of William to be described properly as at a lower end of severe, but severe nonetheless.

13.     For those reasons, the Tribunal sets aside the decision under review and substitutes a decision that the reason for the delay in making the claim was severe illness associated with the birth of William and that, consequently, the baby bonus benefit should be paid. 

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         .............(sgd D De Andrade)…..............
  Diane De Andrade, Personal Assistant

Date of Telephone Hearing      1 September 2010
Date of Decision  8 September 2010
For the Applicant  self represented
For the Respondent                  Ms A Bramley, departmental advocate