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

[2008] AATA 346

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 346

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4154

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		MAREE MAHER

Applicant

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

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date30 April 2008

PlaceMelbourne

Decision The Tribunal affirms the decision under review

(sgd) Egon Fice

Member

Social security – maternity payment – effective claim – whether claim lodged outside 26 week period – severe illness of child

A New Tax System (Family Assistance) (Administration) Act 1999 ss 36, 38 and 39

Imperial Bottleshops Pty Ltd and Edgerton v Federal Commissioner of Taxation (1991) 91 ATC 4546

REASONS FOR DECISION

30 April 2008 Mr Egon Fice, Member      

1.      Ms Maree Maher’s daughter, Anastasia, was born on 20 January 2006.  On 10 August 2006 Centrelink received a claim submitted by Ms Maher for a maternity payment in respect of the birth of Anastasia.  Centrelink is the agent for the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (the Secretary).  Centrelink denied Ms Maher’s claim for the maternity payment because her claim was not made within 26 weeks of Anastasia’s birth.  Ms Maher sought review by an authorised review officer (ARO).  On 19 April 2007 the ARO affirmed Centrelink’s decision.  Ms Maher applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO’s decision.  On 13 July 2007, the SSAT affirmed the ARO’s decision.  Ms Maher now seeks review of the SSAT decision.

2.      There are two principal issues which arise from Ms Maher’s claim. They are:

(a)whether Ms Maher lodged her claim for maternity payment within 26 weeks, that is, on or before 21 July 2006; and

(b)if the answer to (a) is no, whether the time limit of 26 weeks can be extended by reason of Ms Maher’s inability to make a claim because of severe illness associated with the birth of Anastasia.

RELEVANT BACKGROUND

3.      The hospital where Anastasia was born issued Ms Maher with a claim form for maternity payment which had on it a sticker confirming Anastasia’s birth date. 

4.      Shortly after her birth, Anastasia began to have severe problems with colic.  Her symptoms included screaming for hours and displaying persistent irritability.  Anastasia also had problems with her bowels.  Her medical records indicate that she saw a number of medical practitioners because of her colic problem for at least the first of six months after her birth.  According to Ms Maher, the colic persisted for 15 months.  Ms Maher also has another child, a son, who is four years older than Anastasia.

5.      Ms Maher said that her partner, who lived with her, was away from home most days between 6.00am and 7.00pm.

6.      According to Ms Maher, she was also responsible for doing the paperwork in her partner’s business.  However, because of the problems they experienced with Anastasia’s health, she was unable to keep up with that paperwork; for example, submitting quarterly business activity statement returns in respect of her husband’s business. 

7.      Ms Maher said that she did not lodge her claim for maternity payment immediately because of her concerns for Anastasia’s health, and she placed the claim form amongst her husband’s business papers.  It was not until 17 July 2006 that her husband brought the claim form to her attention, having found it amongst his papers.  According to Ms Maher, she and her partner signed the application form on 17 July 2006, which was a Monday.  She said that she placed the claim form in an envelope and posted it to Centrelink at 6.00pm on that day from the White Hills Post Office Centre, which is situated a short distance out of Bendigo.  She used the envelope provided by the hospital.  Prior to posting the envelope, she made a photocopy of the claim form. 

8.      According to Ms Maher, she contacted Centrelink on about 28 July 2006 to ascertain whether the maternity payment claim form had been received.  On being told that it had not, Ms Maher said that she then sent a copy of the original claim form by Express Post to the Hobart office of Centrelink. 

9.      Centrelink’s computer records of customer contact with Centrelink do not record any contact by Ms Maher in late July 2006.  The original of Ms Maher’s claim for maternity payment form was received by Centrelink on 10 August 2006.  Centrelink has no record of having received the copy document which she said she posted via Express Post on 3 August 2006. 

10.     Ms Maher said that she was not told that her maternity payment claim had been rejected until she made enquiries of Centrelink on 22 February 2007.  This is despite the fact that Centrelink’s records show that Ms Maher was sent a notice of rejection on 18 August 2006. 

THE LEGISLATIVE SCHEME

11.     The problems which confront Ms Maher in respect of this claim are due to the need to satisfy the criteria set out in A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act). Section 36 of the Administration Act provides that the only way a person can become entitled to be paid the maternity payment is to make a claim in accordance with Division 3 of that Act.

12. Section 38 of the Administration Act sets out the method by which a claim must be made. Insofar as it is relevant, it provides:

38  How to claim

(1)The individual (the claimant) may make a claim for payment of:

(a)     maternity payment in normal circumstances; or

(b)     …

(2)A claim is not effective unless:

(a)     the claim:

(i)     is made in a form and manner; and

(ii)    contains any information; and

(iii)   is accompanied by any documents;

required by the Secretary;

13. Section 39 of the Administration Act sets out a number of restrictions on making a claim. The relevant restriction for the purposes of this claim is set out in s 39(2), which provides:

(2)Subject to subsection (3), a claim for payment of maternity payment in normal circumstances is not effective if it is made later than 26 weeks after:

(a)     if the circumstances covered by the claim involve eligibility under any of subsections 36(2) to (4) of the Family Assistance Act—the birth of the child mentioned in that subsection; …

14. It is possible to extend the period in which the claim may be made if a claimant satisfies the conditions set out in s 39(3) of the Administration Act. It provides:

(3)If the Secretary is satisfied that the claimant was unable to make a claim for payment of maternity payment 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.

CLAIM LODGEMENT TIME

15. The first matter that I have to decide is whether Ms Maher’s claim for maternity payment was made within the 26 week restriction set out in s 39(2). If it was not, that claim cannot be effective unless s 39(3) applies.

16.     Although Ms Maher gave evidence about the date on which she placed the original claim for maternity payment into the post at White Hills, Centrelink’s records disclose that the original claim form, bearing the sticker from the hospital verifying the date of Anastasia’s birth, was received on 10 August 2006.  This is of course outside the allowable 26 week period.  Ms Maher’s evidence was that she contacted Centrelink on or about 28 July 2006 querying the status of her maternity payment claim.  Having been told that it had not been received by Centrelink, she said she then sent a copy of the claim form to Centrelink by Express Post on 3 August 2006.  Centrelink’s records do not disclose receipt of the copied claim form. 

17. In order to comply with the 26 week restriction set out in s 39(2) of the Administration Act, it is not sufficient for a claimant to simply place a claim in the post within that period of time. It goes without saying that in order for a claim to be made, the claim form must be lodged with the family assistance office which is located at all Medicare offices and Centrelink Customer Service Centres. Advice to this effect is in fact printed on the claim form itself. Therefore, unless the claim form was lodged on or before 21 July 2006, the claim will not be effective in normal circumstances.

18.     The problem here is that Ms Maher has given evidence, on affirmation, that she and her partner signed the claim form on 17 July 2006 and placed it in the post on that Monday evening.  Ordinarily, one would reasonably expect that envelope to reach the Centrelink office in Hobart well and truly before 10 August 2006.  In fact, it would not be unreasonable to expect it to reach Centrelink’s office in Hobart by 21 July 2006.  While that was her evidence, there is no other evidence which supports or corroborates her oral statement. 

19.     A guide as to how this evidence should be treated was given by Hill J in ImperialBottleshops Pty Ltd and Edgerton v Federal Commissioner of Taxation (1991) 91 ATC 4546. In that case, His Honour was dealing with oral evidence given by a Taxpayer which was not supported by documentary evidence. His Honour said, at 4552:

A taxpayer who does not keep records of his deductible outgoings faces a very difficult task. If he goes into the witness box and swears that he has incurred the outgoings he is making a self-serving statement. That does not necessarily mean that he is not to be believed. Such a statement, like statements of purpose, or object or state of mind must, however, be "tested most closely, and received with the greatest caution": TPascoe v FCT (1956) 6 AITR 315; 11 ATD 108T at 111. It would, of necessity, be a rare case indeed where a taxpayer, claiming to have expended a very large sum of money on trading stock and other business expenses, would succeed in satisfying the burden of proving that the assessment is excessive. Some other corroborative evidence would normally be required which makes it more probable than not that his sworn testimony is to be believed. It must, however, be borne in mind that the evidence of a taxpayer is not to be regarded as "prima facie unacceptable" …

20.     Although the Imperial Bottleshops case was dealing with tax issues, and the Court (unlike the Tribunal) was bound by the rules of evidence, nevertheless, the principle which is set out in the above passage is clearly applicable to the evidence given in this case.

21. The problem for Ms Maher is that there was no other evidence given which would support her contention that she posted the claim for maternity payment on 17 July 2006. Her partner was not called to give evidence nor did he provide a written statement. Further, contemporaneously made documentary evidence regarding the receipt of Ms Maher’s claim points to the fact that her claim was received by Centrelink on 10 August 2006. Although she claims to have contacted Centrelink late in July 2006, Centrelink’s Customer Contact records do not record any such telephone contact. Ms Maher then claimed that she had sent a photocopy of her claim for maternity payment to Centrelink on or about 3 August 2006. However, Centrelink’s records do not disclose receipt of any copy claim for maternity payment submitted by Ms Maher. The only document received by Centrelink is the original claim for maternity payment and that was received on 10 August 2006. Therefore, on the balance of probabilities, it is clear I must find that Ms Maher’s claim for maternity payment was lodged on 10 August 2006. Because the 26 week period ended on 21 July 2006, that claim was not effective. Accordingly, for Ms Maher to succeed in this claim, she must demonstrate that the circumstances set out in s 39(3) apply to her.

EXTENSION OF TIME TO LODGE MATERNITY PAYMENT CLAIM

22. In order to satisfy the requirements of s 39(3) of the Administration Act, the Tribunal must have evidence before it which discloses that Ms Maher was unable to lodge her maternity payment claim in normal circumstances because of severe illness associated with the birth of Anastasia.

23.     The term severe illness is not defined in the Administration Act. Accordingly, in conformity of the rules of statutory interpretation, that term must be given its ordinary meaning. The Shorter Oxford English Dictionary defines severe, when referring to an attack of illness or disease, as attended with a maximum of pain or distress, violent, grievous or extreme.  Illness is defined as a bad or unhealthy condition of the body, disease, ailment, sickness.

24.     The medical reports provided by various doctors support Ms Maher’s oral evidence that Anastasia suffered from severe colic.  As Dr Neville King wrote in his letter of 19 June 2007, Anastasia’s problems involved screaming for hours and persistent irritability.  Medical reports also indicate that this persisted at least until the end of June 2006.  There are no medical reports or clinical notes that provide evidence of Anastasia’s colic extending beyond that time.  However, Ms Maher said in her oral evidence that the problem persisted for some 15 months.  There is no other evidence which supports that claim.  Again, Ms Maher’s oral evidence is, in effect, a self-serving statement.  While her evidence is not to be regarded as unacceptable, it does cast some doubt on whether the severity of Anastasia’s illness continued beyond June 2006. 

25.     Although Ms Maher also said that she was now suffering from depression due to financial pressures and the fact that she was not able to get any support in Bendigo, she agreed that she had not been diagnosed with depression.

26.     Although Ms Maher said that her partner worked most days between 6.00am and 7.00pm, no explanation was given why her partner could not have assisted, or taken responsibility for, lodging her claim for maternity payment.  Despite the problems that Ms Maher clearly had with Anastasia at least to the end of June 2006, there was evidence before me that she was able to lodge her claim within the required 26 weeks.  In fact, her evidence was that on 17 July 2006, just prior to the expiry of the 26 week period, her partner brought her attention to the claim for maternity payment and both she and her partner signed it on that day and Ms Maher posted it that evening.  If that is correct, then Ms Maher cannot say that she was unable to lodge the claim within the 26 week period.  If Ms Maher became aware on 17 July 2006 that the claim had to be lodged by no later than 21 July 2006, it is surprising that she did not drive into Bendigo and lodge that claim form over the counter.  There was no evidence to suggest that she was not able to do that.  Therefore, unfortunately for Ms Maher, the evidence does not support her claim that due to Anastasia’s severe colic problem, she was unable to make a claim for payment of maternity payment in normal circumstances. 

CONCLUSION

27.     Although Ms Maher claims that she posted the original claim for maternity payment on 17 July 2006, some four days before the 26 week period expired, on balance, the weight of evidence points to that claim form being posted much later.  In any event, it is the responsibility of the claimant to ensure that the claim form is lodged within 26 weeks.  That means it must be received by a family assistance office within that time.  That did not happen. 

28. Because Ms Maher failed to lodge the claim for maternity payment within the 26 week period as required by the Administration Act, her claim was ineffective. Although she relied on s 39(3) of the Administration Act contending that she was unable to make a claim in normal circumstances because of the severe colic which Anastasia suffered for at least the first six months of her life, the evidence does not support Ms Maher’s assertion that she was unable to do so. It follows that the decision of the SSAT made on 13 July 2007 was correct and it must be affirmed.

I certify that the twenty-eight (28) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Member

(sgd) Mara Putnis
  Clerk

Date of Hearing  11 February 2008 
Date of Decision  30 April 2008
Advocate for the Applicant          Self-represented
Advocate for the Respondent       Andrew Carson, Centrelink Legal Services