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

[2007] AATA 1576

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1576

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/461

GENERAL ADMINISTRATIVE DIVISION		)
Re		KATIE MORRELL

Applicant

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

  Respondent

DECISION

Tribunal Dr M Denovan, Member

Date24 July 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................[Sgd]..........................

Dr M Denovan
  Member

CATCHWORDS

SOCIAL SECURITY – maternity payment – Centrelink has no record of a claim from the applicant – applicant lodged a claim form outside of the 26 week time requirement – decision affirmed

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

Administrative Appeals Tribunal Act 1975 (Cth) s 37

REASONS FOR DECISION

24 July 2007          Dr M Denovan, Member

Introduction

1.      Miss Katie Morrell’s daughter Olivia was born on 14 December 2005.  I have to decide whether Miss Morrell is entitled to receive maternity payment with respect to the birth of that child.

Background

2.      On 6 November 2006 Miss Morrell wrote to Centrelink. Her letter states that she was writing to explain the reasons for “late application of parent payment for…Olivia” (T6). Miss Morrell enclosed a copy of Olivia’s birth certificate and an Obstetric Discharge Summary and Referral form from the Bayside District Health Service.

3.      On 8 November 2006 Miss Morrell contacted Centrelink to discuss maternity payment with respect to Olivia.

4.      On 8 November 2006 Centrelink responded to Miss Morrell’s letter of 6 November 2006, advising that there was no record of a claim for maternity payment being lodged in relation to Olivia (T7). Centrelink undertook to do further searches to ascertain whether a claim form had been submitted.

5.      On 10 November 2006 Centrelink wrote to Miss Morrell advising that her records had been examined and no claim for maternity payment for Olivia had been found, and as no claim had been received within 26 weeks of Olivia’s birth, maternity payment was not to be granted.

6.      Miss Morrell was dissatisfied with the decision of Centrelink, and she requested a review of the decision on 14 November 2006.

7.      On 24 November 2006 Miss Morrell lodged a claim form for Newborn/Child Claim for Family Assistance and Medicare (T11) with respect to Olivia. That form is an application for maternity payment.

8.      Centrelink wrote to Miss Morrell on 29 November 2006 advising that the decision not to grant her maternity payment was the correct decision (T10). On 11 December 2006 the decision was affirmed by an authorised review officer (T12).

9.      On 20 December 2006 the applicant applied to the Social Security Appeals Tribunal (SSAT) for review of the decision. The decision was affirmed by the SSAT on 5 February 2007.

10.     The application for review by the Administrative Appeals Tribunal was lodged on 21 February 2007.

Issues for Determination

11.     I have to consider whether Miss Morrell is entitled to maternity payment in respect of the birth of her daughter Olivia, on 14 December 2005.

12. Under section 36 of the A New Tax System (Family
Assistance) (Administration) Act 1999 the only way that a person can become entitled to be paid maternity payment is to make a claim in accordance with Division 3 of Part 3 of that Act (T3). Subsection 39(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 provides that a claim for maternity payment is not effective if it is made later than 26 weeks after the birth of the child.

13.     Subsection 39(3) allows the Secretary to extend the 26 week limit in situations where the person is unable to make a claim because of severe illness associated with the birth of the child.

Material before the Tribunal

14.     The following documents were admitted into evidence:

Exhibit 1 T documents lodged pursuant to section 37 of the Administrative                        Appeals Tribunal Act 1975

Exhibit 2        Respondent’s Statement of Facts and Contentions dated 24 May 2007                  with attachment A

Exhibit 3        Centrelink computer record dated 1 November 2006, labelled              Attachment B to the Respondent’s Statement of Facts and Contentions

Exhibit 4        Letter from Centrelink to the applicant dated 10 November 2006,                          labelled Attachment C to the Respondent’s Statement of Facts and  Contentions

Exhibit 5        Family Assistance Office Guide to Payments, labelled Attachment D to                  the Respondent’s Statement of Facts and Contentions.

Evidence of the Applicant

15.     The applicant gave evidence in person. The gist of her evidence is summarised as follows:

16.       Miss Morrell said that within four weeks of giving birth to Olivia she went to the Capalaba office of Centrelink.  Because she had a caesarean section she was unable to drive and her partner drove her to the office. She remembers the occasion clearly because it was the first time that she had been separated from her newborn baby, and she recalls giving her partner instructions about leaving the air conditioner in the car running and to keep the car idling. She recalls her partner saying everything was going to be ok.

17.     Miss Morrell recalls presenting her claim for maternity payment to the Centrelink delegate and being told that she required proof of identification. She interpreted that to mean that Olivia’s birth certificate was required. Miss Morrell assumed that every time she lodged a form with Centrelink it was stamped. She therefore perceived no urgency and resolved to wait until Olivia’s birth certificate arrived. She had applied for the birth certificate within two weeks of the birth of Olivia.

18.     Miss Morrell received the birth certificate for Olivia in July 2006. Miss Morrell’s partner was working in Chinchilla at the time. Miss Morrell did not have access to a car, and she did not use public transport because of the lack of availability of seat belts. It was for these reasons that Miss Morrell did not take the birth certificate to the Centrelink Office, some 30 minutes away by public transport, until her partner was available to drive her in October 2006.

19.     Miss Morrell is not sure when she was informed about the time limit of 26 weeks, in relation to the claim for maternity payment. She thinks the limit is written on the claim form. She said that she did not have a need to be conscious about the time limit because she believed that she had lodged a claim within time when she approached Centrelink in January 2006.

20.     When Miss Morrell approached Centelink in October 2006 she was told by a young girl that she was too late to claim maternity payment.
She was given a phone number to call, and after being sent the incorrect application forms several times, Miss Morrell finally lodged her application for maternity payment, but was rejected.

21.     Miss Morrell believes that when she lodged her application for maternity payment in January 2006 it included the only available claim for Newborn/Child Claim for Family Assistance and Medicare with a validating stamp on it. Miss Morrell searched for that form at home but was unable to find it.

22.     Miss Morrell believes that although she presented the application form with the appropriately signed sticker attached, she was misinformed by the Centrelink delegate that a birth certificate was required for the identification of Olivia. Miss Morrell did not question the information given to her. She considered to do so would be rude and she assumed that the delegate of Centrelink knew what she was talking about.

23.     Miss Morrell said that she still has the discharge documents from the hospital relevant to the birth of Olivia and she said that she would not have lost the appropriate form with the signed sticker. She believes that she lodged that form with Centrelink.

24.     In relation to the delay in obtaining a birth certificate for Olivia, Miss Morrell said that she attempted to contact the registry of births, deaths and marriages at least three times, however she repeatedly received a message inferring that the line was busy and she should ring back another time. When she finally got through on the third occasion no explanation was given for the delay in issuing the birth certificate. The registry has refused to issue a statement explaining the delay.

25.     Miss Morrell acknowledges that she did not attempt to contact Centrelink regarding the delay in obtaining a birth certificate. In retrospect she realises that perhaps she could have faxed a copy of the birth certificate to Centrelink after receiving it, however at the time that option did not occur to her.

26.     Miss Morrell said that she needed the money that she would have received for maternity payment. It would have assisted her in building a fence, necessary for her children’s welfare. The fence would have been more conveniently built by private contractors, however after she realised that there was going to be a delay in receiving maternity payment, she and her partner organised for the  fence to be built and the urgency of receiving maternity payment was no longer an issue.

27.     Miss Morrell said that whilst her husband was in Chinchilla she shopped on the weekends that he was available to assist her. She has an IGA within walking distance.

28.     Miss Morrell said that she consulted an accountant in approximately October 2006. At that time family tax benefit was discussed and she wondered why she was able to obtain that benefit without a birth certificate for Olivia but was unable to qualify for maternity payment without the certificate.

Evidence of the Applicant’s Partner

29.     Mr Adrian Masci said that he recalls going to the Centrelink office in January 2006. He remembers Katie being absent for about ten minutes, and returning to say that the piece of paper from the hospital was not good enough.

30.      In October when he and Katie visited their accountant, Mr Masci recalls discussing family tax benefit. He does not recall discussing maternity payment with the accountant.

Evidence of Christine Burney

31.     Christine Burney is a Customer Service Officer for Centrelink with approximately eight years experience in that position. Ms Burney’s duties include receiving forms for family claims, such as family tax benefit and maternity payment.

32.     Ms Burney said that the claim for maternity payment is attached to the same form as the claim for family tax benefit. When someone lodges a claim for either or both benefits, the claim is routinely examined by someone with expertise in that area.  In Ms Burney’s experience, the only time that a birth certificate would be required to process a maternity payment claim, is when the form from the hospital has been misplaced. Ms Burney said that all claims are annotated on a client’s record, if not immediately, at some time after the initial contact. Ms Burney said that there was a very slim chance that a claim, such as that for maternity payment, would be lost. The only way she could imagine that would be possible would be if the claim was accidently attached to another claim. As each claim is examined page by page, Ms Burney thought it an unlikely scenario that such an event would not be detected over the passage of time.

33.      Ms Burney worked for the Capalaba Centelink Office in January 2006. Her recollection is that at that time the team handling family claims was very experienced. She does not recall any new or inexperienced staff.

Findings of Tribunal

34.     To be entitled to maternity payment with respect to her daughter Olivia, Miss Morrell was required to lodge a claim no later than 26 weeks after the birth of the child.

35.     Centrelink has no record of Miss Morrell lodging a claim for maternity payment prior to 24 November 2006. A finding that Miss Morrell lodged a claim in January necessitates a finding that Centrelink lost the claim form prior to either processing Miss Morrell’s application or annotating her Centrelink record. Whilst I accept this is a possibility, I must be reasonably satisfied it was the case in order to make such a finding. I am not so satisfied.

36.     The evidence is that customer service providers at Capalaba Centrelink Office in January 2006 were all reasonably experienced, and the possibility that a claim form was lost by Centrelink at that time is extremely slight.

37.     As the customer service team at Capalaba Centrelink in January 2006 was experienced, it is unlikely that Miss Morrell would have been told she needed further identification for Olivia if, as she claims, she presented a claim complete with attached requisite hospital sticker.

38.     Further, I find Miss Morrell’s behaviour inconsistent with a finding that she lodged a claim for maternity payment in January 2006 for the following reasons:

·   I accept that Miss Morrell found it difficult to physically attend a Centrelink Office prior to November 2006, however she was unable to provide an explanation as to why she did not fax or post a copy of the birth certificate to Centrelink after receiving it in July 2006. Miss Morrell is a well presented, intelligent, university educated young woman and I do not accept that this possibility would not have occurred to her under the circumstances she claims to have found herself in, which includes considerable financial strain.

·   It is not clear when Miss Morrell first became aware that the hospital sticker was sufficient, and there was no requirement to produce a birth certificate for the purpose of claiming maternity payment. The SSAT has recorded her as saying she first became aware when she visited her accountant. I find it surprising that upon realising a birth certificate was not necessary, Miss Morrell did not contact Centrelink and enquire as to why she had not been paid maternity payment, given that she believed she had lodged a claim form with the hospital sticker attached. Miss Morrell did not raise such a concern when she contacted Centrelink on either 26 October 2006 or 1 November 2006.

39.     Miss Morrell had no correspondence with Centrelink until she telephoned on 26 October 2006 to request a claim form for lump sum family tax benefit. This request appears to have been prompted as the result of a visit to Miss Morrell’s partner’s accountant for the purpose of preparing a tax return.

40.     In response to Miss Morrell’s call on 26 October 2006 Centrelink sent her a claim form for lump sum family tax benefit, and also information about claiming maternity payment (Exhibit 2). On 1 November 2006, Miss Morrell contacted Centrelink, and as a result of that contact was sent a form that, amongst other things, can be used to claim maternity payment.

41.     It would appear that Miss Morrell did not turn her mind to maternity payment and the limited time in which an application for the benefit must be made, until she received information about that benefit from Centrelink in response to her phone calls in October and November 2006.

42.     There is no suggestion that Miss Morrell was unable to make a claim because of severe illness associated with the birth of Olivia. Subsection 39(3) therefore does not allow for an extension of the 26 week limit in the circumstances of this case.

Decision

43.     I affirm the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  30 April 2007
Date of Decision  24 July 2007
The Applicant was unrepresented
For the Respondent                  Mr M Amundsen