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

[2011] AATA 855

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 855

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: 2011/1291  

GENERAL ADMINISTRATIVE DIVISION		)
Re		TRISHA LUCEV

Applicant

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

Respondent

DECISION

Tribunal Ms K Hogan, Member

Date29 November 2011

PlacePerth

Decision The Tribunal affirms the decision under review.

.....(sgd) Ms K Hogan.....

Member

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – baby bonus payment – claim for bonus not effective - illness did not prevent claim being lodged – no extension of time – decision under review affirmed.

LEGISLATION

A New Tax System (Family Assistance) Act 1999 s 36(1)

A New Tax System (Family Assistance) (Administration) Act 1999 ss 36, 38(2), 39, 39(2), 39(3), 41(1)

Families, Housing, Community Services and Indigenous Affairs and OtherLegislation Amendment (2008 Budget and Other Measures) Act 2008 (No. 63, 2008)
Social Security Act 1991

REASONS FOR DECISION

History

1.      The applicant is the mother of Zane born 15 June 2009.

2.      On 17 July 2009 the applicant lodged a Newborn Child Claim for Family Assistance and Medicare Form in respect of Zane.

3.      On 6 August 2009 the Family Assistance Office (Centrelink) decided that the applicant had not lodged an effective claim for baby bonus for Zane as she had not provided the information requested in the their letter to her dated 21 July 2009.

4.      On 29 June 2010, the applicant lodged an online Claim for Baby Bonus and Maternity Immunisation Allowance for Zane.

5.      On 12 July 2010 Centrelink rejected the applicant’s claim because it was lodged later than 52 weeks after Zane’s birth.

6.      Following the applicant’s request for a review of the decision on 21 December 2010 a Centrelink Authorised Review Officer (ARO) affirmed the decisions of 6 August 2009 and 12 July 2010.

7.      On 5 January 2011 the applicant lodged an application for review of the decision with the Social Security Appeals Tribunal which affirmed the decision of the ARO on 21 March 2011.

8.      The applicant applied by these proceedings to review that decision.

Issues

9.      The issue for the Tribunal to determine is:

(a)whether the claim for baby bonus made by the applicant was effective and was made within time; or

(b)if not, whether an exception can be made out.

10.     It was not in dispute that the applicant was the mother of Zane, born 15 June 2009 nor that the applicant had completed and lodged with Centrelink a Newborn Child Claim for Family Assistance and Medicare Form in which she answered “Yes” to the question asking if she was claiming baby bonus and on 29 June 2010 the applicant lodged a Online Claim for Baby Bonus and Maternity Immunisation Allowance for Zane.

11.     There was no evidence before the Tribunal that the complete claim could not be lodged within 52 weeks of Zane’s birth.

Legislation

12. Section 36(1) of A New Tax System (Family Assistance) Act 1999 ("the Act") provides that eligibility for baby bonus in respect of a child depends on the applicant meeting one of the four criteria set out in that section. Section 36 of the Act provides that a person can only be entitled to payment of baby bonus if a claim is made in accordance with the legislation stated in Division 5 of Part 3 of the New Tax System (Family Assistance) (Administration) Act 1999 ("the Administration Act"). Under s 38(2) of the Administration Act, a claim is not effective unless made in the form and manner and with the information and documents required by the Respondent.

13. Section 39 of the Administration Act provides restrictions that affect a person’s ability to make an effective claim for baby bonus “in normal circumstances”. In particular, at the time that the claim was made it imposed in s 39(2) time limits (26 weeks) applicable to making an effective claim.

14. Section 39(3) of the Administration Act allows an extension of time for a claim to be made because of severe illness associated with the birth of the child. Furthermore, s 41(1) of the Administration Act provides that a claim for payment of baby bonus is not effective it is taken not to have been made.

15. Section 39 was amended in 2008 by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008 (No. 63, 2008) which extended the time frame for claiming from 26 to 52 weeks effective from 1 January 2009. According to the Explanatory Memorandum when the changes were introduced to Parliament, this change was effected as a result of the increased baby bonus amount and the fact that additional income testing was required of parents who might need to lodge tax return information. In addition it was noted that the change would benefit the ‘small number’ of parents who did not claim within the 26 week period.

16. In addition, apart from the requirement as to the time limits, s 36 of the Act states that a person must be eligible to receive Family Tax Benefit ("FTB") before they can be eligible to receive the baby bonus. To receive the family tax benefit a person must be an Australian resident under s 21 of the Act.

Evidence

17.     The Tribunal was provided with a number of documents including:

(a)the section 37 documents; and

(b)written submissions from the parties.

18.     The Tribunal heard oral submissions on behalf of the parties.

Applicant

19.     The applicant told the Tribunal she completed the baby bonus application shortly after the birth of Zane on 15 June 2009.

20.     The applicant said because the form was submitted in a new financial year, she presumed that she would hear from Centrelink towards the end of the financial year and so waited to receive a response to her application.

21.     The applicant said she had previously completed an application for the birth of her first child, Holly and had received the bonus.

22.     The applicant said that she contacted Centrelink to follow up her application just before the end of June 2010.

23.     The applicant confirmed the statement she had previously made to the Social Security Appeals Tribunal that she did not receive letters from Centrelink dated 21 July and 6 August 2009 which advised her that her application was not complete.

24.     When the applicant contacted Centrelink at the end of June 2010, she was told that as she had contacted them outside the 52 week time limit, she would not be eligible for the baby bonus.

25.     The applicant confirmed that the post office box address to which Centrelink had addressed the letters was correct.

26.     The applicant acknowledged that there was a box on the first page of the form (T5) requesting information via a website or telephone. 

Respondent

27.     The respondent relied on its Statement of Facts and Contentions.

28. The respondent contended that the applicant’s claim for payment of baby bonus is not effective, as it was made later than 26 weeks from the birth of the applicant’s child and was not in compliance with the requirements stated in s 36(2) of the Act.

29. Consequently, the respondent maintained, the applicant’s claim for baby bonus was not effective when it was made and that it is therefore taken not to have been made pursuant to s 41(1) of the Administration Act.

30. It was further contended that the extension of time for a baby bonus claim referred to in s 39(3) of the Administration Act does not apply in this case.

Consideration and Application of the  Law

31.     The Tribunal notes that the letter of 21 July 2009 required the applicant to register online and to make an online claim link.

32.     The Tribunal notes that the letter of 6 August 2009 advised the applicant that Centrelink rejected her claim for the baby bonus because she failed to provide the information.

33.     In relation to the claim lodged 17 July 2009, the Tribunal finds that the letters dated 21 July and 6 August 2009 were addressed to the applicant’s correct address and therefore the Tribunal is satisfied that the letters were pre-paid and posted as there was no evidence to the contrary.

34.     Pursuant to section 224 of the Administration Act a decision is taken to have been given to her without contrary proof. 

35.     When the applicant contacted Centrelink on 29 June 2010 the 52 week post-birth claim period as stipulated in sub-section 39(1) of the Administration Act had expired.

36. The Tribunal finds that the online claim on 29 June 2010 was ineffective by application of sub-section 39(2) of the Administration Act.

37.     The Tribunal determines that because the claim was ineffective it has taken not to have been made and as a consequence the applicant does not have an entitlement to baby bonus payment for Zane.

38.     The Secretary has a power to extend the time for making a claim, if illness prevented the claim being completed.

39.     There was a period of approximately a month when Zane was not well due to having contracted a Meningococcal Virus, however, even if that time were to have been included in an extension, it would not serve to validate the applicant’s claim.

40.     Having considered all the evidence, the Tribunal is satisfied that the applicant’s claims for baby bonus was not effective; was not made within time, and does not consider that an exception can be made out.

41.     The Tribunal considers that it is unfortunate for the applicant that the claim for baby bonus was not made in accordance with the legislation. However, the Tribunal is bound by the legislation and must apply the law accordingly.

Decision

42.     The Tribunal affirms the decision under review.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member

Signed: ..(sgd) T Freeman........
  Associate

Date of Hearing  10 October 2011
Date of Decision   29 November 2011
Representative for the Applicant               Self-represented
Representative for the Respondent        Mr Paul Maishman