Morgan and Secretary, Department of Families Community Services and Indigenous Affairs

[2007] AATA 1831

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1831

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0518

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHELLE MORGAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal M J Carstairs, Senior Member

Date4 October 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – maternity payment – claim not received within 26 week time period – applicant believes claim was posted within time period – no extension of time on grounds of serious illness associated with birth of child – postal rule does not apply – decision under review affirmed

A New Tax System (Family Assistance) (Administration) Act 1999 – ss36, 38(2), 39

Acts Interpretation Act 1901 (Cth) - s29(1)

Hammoud and Secretary Department of Family and Community Services [2006] AATA 174

Campbell and Department of Family and Community Services [2007] AATA 1568

REASONS FOR DECISION

4 October 2007   M J Carstairs, Senior Member

1.      Mrs Michelle Morgan seeks a review of a decision of the respondent, Centrelink, rejecting her claim for a lump sum maternity payment after the birth of baby Daniel, born on 20 December 2005.  

2.      The reason Centrelink has not paid the maternity payment is that the only record of a claim being made by Mrs Morgan was a claim Centrelink received on 1 December 2006.  This was not within 26 weeks of Daniel’s birth, as is required by the legislation.  However, Mr and Mrs Morgan are certain they sent a claim form (the “first claim form”) much earlier than the December claim.  They believe the first claim form was sent to Centrelink around March 2006, which was within 26 weeks of Daniel’s birth. 

3.      The question that I have to decide is whether there was a claim made within 26 weeks of Daniel’s birth and, if not, whether there are grounds for extending time in this case. 

4.      Mrs Morgan did not attend the hearing but her husband, Tim Morgan, represented her.  Mr Morgan sent the paperwork to Centrelink after Daniel was born. 

BACKGROUND

5.      Mr and Mrs Morgan have three children other than Daniel: Katelyn, Ashley and Jessica.  As it the usual practice, Mrs Morgan was given the maternity payment claim form when she was in hospital for Daniel’s birth.  It seems that about January 2006 she and her husband started to complete the forms, but then put the paperwork away as they did not have all the necessary information they needed to complete the forms.  Later, when the paper work was completed, they were still within the time limit for lodgement.  Mr Morgan is certain he posted the claim and associated paperwork within 26 weeks of Daniel’s birth.

6.      Centrelink maintains they did not receive the first claim form.  Mr and Mrs Morgan only completed a second claim form once their accountant explained to them that they were mistaken to believe that the lump sum maternity payment would be credited to them via their tax returns, in a similar fashion to their family tax benefit payment.  This led to them contacting Centrelink and lodging the second claim form for maternity payment on 1 December 2006.

EVIDENCE ABOUT SENDING THE FORM

7.      Mr Morgan said in his written statement dated 20 April 2007[1] that he sent the completed paperwork to Centrelink in late March 2006.  In his oral evidence Mr Morgan was concerned to correct one part of the record of his evidence to the Social Security Appeals Tribunal, where he says that that Tribunal misunderstood what he was trying to say in regard to sending the maternity payment claim form to Centrelink and registering Daniel’s birth.  Mr Morgan says that he remembers sending the claim for maternity payment at the same time as he sent the forms to register Daniel’s birth, but he is very sure that there was no possibility that he mistakenly put the two documents into the one envelope.  Mr Morgan was adamant that he sent the two documents at the same time but as two separate items of post.  I accept that evidence.

[1] Exhibit A2

8.      Mr Morgan told the Social Security Appeals Tribunal that his recollection was that he posted the documents at the Childers Post office.  However, his evidence to me was that it is more likely that he put the documents in the mail basket at his work, a practice permitted by his employer provided employees use their own stamps on any personal mail.  I asked Mr Morgan how he would know what the stamping would cost for a large A4-size document such as the maternity allowance claim form.  He said that he would have used two 50c stamps. 

9.      Mr Morgan observed that he now believes that he used his work mailing system because he probably used the photocopier at work to photocopy the back page of the first claim form.  He photocopied this page for his own record that he has posted a document.  Mr Morgan sent this photocopied back page of the first claim form – bearing the date 3 January 2006, being the date that he and his wife signed the claim form before putting it to one side while they awaited other information – to Centrelink as his evidence that he had posted the first claim to them.

10.     Mr Morgan provided a letter from their general practitioner, Dr R Prasad[2], stating that Mrs Morgan suffered from postnatal depression after Daniel’s birth and that Daniel was an irritable colicky baby who caused his parents sleepless nights.  He said that he treated Mrs Morgan with anti-depressants and she required assistance from the practice nurse to handle Daniel.  Dr Prasad said that Mr Morgan had a hard time supporting Mrs Morgan because of his full-time work. 

[2]  Exhibit A1

11.     Mr Morgan said that, at about the time of Daniel’s birth, his own father had died.  His personal grief, in addition to the difficulties of looking after his wife and their three other children, made it a very trying time for the family. 

LEGISLATION

12.     The relevant legislation in relation to claims for maternity payments is the A New Tax System (Family Assistance) (Administration) Act 1999 (the FAA Act). Section 36 of the FAA Act stipulates that the only way a person can become entitled to be paid maternity payment is to make a claim. To be effective that claim must be in accordance with s 38(2) of the FAA Act, which provides that a claim will only be effective if made in a form and manner required by the Secretary and contains all the information needed, and, under s39(2)(a) will not be effective unless lodged within 26 weeks of the birth of the child.  

13. Section 39(3) of the FAA Act provides for a discretion to extend the time limit but only where the decision-maker 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. Section 41(1) of the FAA Act provides that if the claim is not effective, it is taken not to have been made.

14.     In the present case, the second claim form falls outside the 26 week period and cannot be an effective claim.  As to the first claim, I have no doubt that Mr Morgan completed the first claim form in the way he described and put it in to the post.  At the time that he put it in to the post, I accept that it was within the 26 week period. 

15.     At the hearing Mr Morgan placed most reliance on his wife’s ill health as providing a basis for their failure to lodge the first claim.  However, I do not agree. 

16.     An extension of time could have been granted if Mrs Morgan was unable to lodge a claim by reason of severe illness.  A number of Tribunal decisions have recognised post natal depression as being a severe illness, including Hammoud and Secretary Department of Family and Community Services [2006] AATA 174 and Campbell and Department of Family and Community Services [2007] AATA 1568. However, there was no evidence that Mrs Morgan was unable to make the claim. She relied upon Mr Morgan to deal with it. His evidence shows that he was able to attend to it, not straight away, and not without difficulty, but nevertheless within the 26 week time frame.

17.     I do not accept that Mrs Morgan was unable to lodge this claim, when the evidence is that Mr Morgan was able to put it into the post on her behalf.  Family members are often called upon in circumstances like these.

18.     That first claim did not arrive at Centrelink.  In some circumstances, a claimant could rely on the postal rule which provides[3]:

Meaning of service by post

(1) Where an Act authorizes or requires any document to be served by post, whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post."

[3] Acts Interpretation Act 1901 (Cth) s29(1)

However, Mr Morgan believes that he posted this document thorough his work mailing system.  There is no evidence that it was correctly stamped.  There was limited evidence concerning the address that Mr Morgan used.  Furthermore, anything could have happened to the document between it being placed in the mail at his workplace and being forwarded to Australia Post for delivery.

19.     For these reasons, I concluded that the decision to reject Mrs Morgan’s claim for maternity payment was correct.

DECISION

20.     The Tribunal affirms the decision under review.

I certify that the preceding 20 paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Carstairs.

Signed:         …………………………………………………..
Eleanor O’Gorman, Associate

Date of Hearing  18 September 2007
Date of Decision  4 October 2007

The Applicant was represented by her husband, Mr T Morgan
For the Respondent                  Ms H Wallis Dunn, Departmental Advocate