Mead and Secretary, Department of Family and Community Services

[2003] AATA 584

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2003] AATA 584

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/183

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MATTHEW HERBERT MEAD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date6 June 2003

PlaceAdelaide

Decision The Tribunal refuses the application for extension of time.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – application for extension of time – delay attributed to grief and anxiety over death of child

Family Assistance Act 1999 sections 21, 22, 31, 36

Family Assistance (Administration) Act 1999

ORAL REASONS FOR DECISION

6 June 2003   Senior Member WJF Purcell

1.      On 13 February 2003 the Social Security Appeals Tribunal (SSAT) affirmed a decision of an Authorised Review Officer of 6 November 2002 which affirmed a decision of an officer of 9 October 2002 not to grant Family Tax Benefit or Family Tax Benefit Bereavement Payment to the applicant in respect of his daughter, Grace.

2.      The matter came on for Hearing by way of an application for extension of time.  The applicant appeared on his own behalf and gave oral evidence.  Ms Pugsley represented the respondent (the Department), and the applicant provided a number of exhibits.

3.      The applicant graduated in law in 1998.  He is undertaking both a placement currently with a legal firm, and the Graduate Diploma in Legal Practice course.  His wife gave birth to Grace on 30 September 2002 following a full-term pregnancy.  Grace had died 2 days prior to birth, and was stillborn therefore.  On 2 October 2002, the applicant understood, following his contact with Centrelink officers on that day, that he was entitled to Family Tax Benefit Bereavement Payment.  On the basis of this information, he and his wife believed that they would have the financial means to hold an appropriate funeral for Grace, and the funeral took place 4 days later. 

4.      On 9 October 2002, the Department rejected the applicant’s claim for Family Tax Benefit Bereavement Payment in respect of Grace, on the basis that she was not a “Family Tax Benefit child”.  This decision was reconsidered and affirmed on 22 October 2002.  The applicant sought an internal review, and on 6 November 2002 an Authorised Review Officer affirmed the decision.  The Authorised Review Officer referred to the relevant provisions set out in the Family Assistance Act 1999 (the Act) and the Family Assistance (Administration) Act 1999, and concluded that the applicant was not entitled to Family Tax Benefit or Family Tax Benefit Bereavement Payment.

5.      The applicant stated in his application for an extension of time for lodging an application with this Tribunal, that he received a copy of the reviewable decision on 28 February 2003, in which case he was required to lodge his application for review by 28 March 2003.  He did not lodge his application until 13 May 2003, and outlined his reasons for applying for an extension of time as follows:

“Due to the grief and anxiety over the death of our child, it was not until recently that I could bring myself to a detailed reading of the decisions and pertaining legislation.  Since that time and after seeking legal advice it has become apparent that the legal basis of the decision is questionable.  I seek an extension to have such question determined.”

6.      Section 21(1) of the Act provides:

“21(1)  An individual is eligible for family tax benefit if:

(a)the individual has at least 1 FTB child (see section 22 and later provisions); and

(b)       the individual:

(i)        is an Australian resident; or

(ia)      is a special category visa holder residing in Australia; or

(ii)       satisfies subsection (1A); and

(c)the individual’s rate of family tax benefit, worked out under Division 1 of Part 4, is greater than nil.”

7.      Section 22(2) of the Act provides:

“22(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.”

8.      Section 31 of the Act provides:

“31(1)  This section applies if:

(a)an individual is eligible for family tax benefit (except under section 33) in respect of one or more FTB children; and

(b)       one of the FTB children dies; and

(c)in a case where the individual is eligible for family tax benefit in respect of more than one FTB child immediately before the child died—the individual’s rate of family tax benefit would decrease as a result of the child’s death.

Individual remains eligible for family tax benefit for 14 weeks after the death of the child

31(2)The individual is eligible for family tax benefit, at a rate worked out under section 64, for each day in the period of 14 weeks beginning on the day the child died.  This subsection has effect subject to subsection (3) of this section and to section 32.

14 weeks reduced in certain circumstances

31(3)The period for which the individual is eligible for family tax benefit under subsection (2) does not include:

(a)if the child was undertaking full-time study at the time the child died—any day on which the child would have been aged 25 if the child had not died; or

(b)in any other case—any day on which the child would have been aged 21 if the child had not died.

Eligibility during the period to which subsection (2) applies is sole eligibility

31(4)Except as mentioned in subsection (2), the individual is not eligible for family tax benefit in respect of any FTB children of the individual during the period to which subsection (2) applies.”

9.      Section 36(4) of the Act provides:

“36(4)  Third, an individual is eligible for maternity allowance in respect of a child if:

(a)       the child is a stillborn child; and

(b)the individual would have been eligible for family tax benefit in respect of the child, at any time within the period of 13 weeks starting on the day of the child’s birth, if the child had not been a stillborn child and the individual’s Part A rate at that time would have been greater than nil.”

10.     The applicant gave evidence that he was so grieved by Grace’s death, that he withdrew from his studies in the Graduate Diploma in Legal Practice course, and his placement with the law firm 2 weeks after her death.  He did not return to work until 5 months later, in March 2003, the month after the SSAT decision was handed down.  He said that he could not bring himself to read the legislation at that time as he was continuing to suffer an acute state of grief, and he sought formal grief counselling in April 2003 through the Women’s and Children’s Hospital and also Anglicare.  He said that it was not until May 2003 that he felt he could cope with addressing the matter of the SSAT decision.  He said he had been so distressed by the SSAT’s decision that Grace was not a “child” for the purposes of the sub-section.

11.     The applicant gave evidence that he has been advised recently by officers of the Department that he is likely to receive a favourable decision in the near future regarding the compensation payment by the Department, which would be of the same amount as the Family Tax Benefit Bereavement Payment he sought.

12.     The applicant maintains that he has not rested on his laurels, and that his inability to focus on the legislation in terms of the SSAT decision is a reasonable excuse for the approximate 2 months delay in applying to this Tribunal for review.  He maintains in addition, there is merit in his case, as Grace was a Family Tax Benefit child, she was in the care of him and his wife for 2 days after her stillborn delivery.  They provided a baptism, a funeral service, were legally responsible for signing the authority for an autopsy, responsible to Centennial Park for the burial and the ongoing expenses of the funeral, birth and death notices, and attending for the results of the autopsy.  The legislation he maintains, has been misapplied, and there is merit in his application.  Grace was within the terms of the legislation.

13.     The Department submits that the applicant has no reasonable explanation for the delay.  He knew in October 2002 that although Maternity Allowance and Immunisation Allowance was payable, Grace did not qualify as a Family Tax Benefit child.  As to the question of merits, the Department submits that the application could not succeed; that the legislation provides specifically for payment of a Maternity Allowance and Immunisation Allowance in respect of a stillborn child, but not in relation to Family Tax Benefit or Family Tax Benefit  Bereavement Payment.

14.     It is not possible in these brief Reasons for Decision to outline the general principles in relation to the purposes of time limitations in the orderly conduct of administrative matters.  These were canvassed in the course of the Hearing, and I do not intend to address that aspect any further.

15.     I accept the applicant's evidence as to the distress and grief and that of his wife in these tragic circumstances; but he had known since a matter of weeks after Grace's death that she was not regarded by the Department as a Family Tax Benefit child.  This decision was reinforced by the Authorised Review Officer; it is difficult to see why the SSAT affirming this decision was so debilitating, that although he returned to work and his studies in March 2003, he could not attend to the lodgement of an application for review in this Tribunal.  In any event, even accepting the applicant’s level of distress, I must turn to the question of merit. 

16.     A Family Tax Benefit child is defined in section 22(2) of the Act.  The child must be under 18, and the applicant must be legally responsible for the day-to-day welfare of the child, and the child must be in the care of the applicant, and be an Australian resident.  The applicant argues that Grace was in the care of him and his wife for the 2 days following her stillbirth, and thus section 22 of the Act is satisfied.  The definition requires however, the 3 further elements of sub-sections (a), (c) and (d) and it is clear in the circumstances of the matter that the child, Grace, cannot satisfy section 22(2) of the Act.  She is not a Family Tax Benefit child.  The application could not succeed.

17.     I am satisfied on the evidence that in all the circumstances of the matter it is not appropriate that an extension of time be granted.  The Tribunal decides to refuse the application for extension of time. 

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date of Hearing  6 June 2003
Date of Decision  6 June 2003
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Ms A Pugsley
Solicitor for the Respondent     Service Recovery Team