NIVITHA GOPALAN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS

[2009] AATA 304

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 304

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3959

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NIVITHA GOPALAN

Applicant

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

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date1 May 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Claim for payment of baby bonus – Claim made outside statutory time limit – No basis for extending time limit – Baby bonus payment not payable – Tribunal to apply law as prior to amending legislation – Decision under review affirmed

A New Tax System (Family Assistance) Act 1999 (Cth), s 36(2)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 39(2), 39(3)

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008 (Cth), Schedule 2, items 1, 2, 3, 4, 18, 19, 22

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934

Re Secretary, Department of Social Security and Haughey (1995) 36 ALD 653

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

REASONS FOR DECISION

1 May 2009 Mr S Karas, AO, Senior Member

BACKGROUND

1.      Ms Nivitha Gopalan, the applicant, made a claim for payment of baby bonus on 30 April 2008 in relation to the birth of her son, Arjun Gopalan, on 21 June 2007.  Ms Gopalan was eligible for a family tax benefit in relation to him.  The claim for baby bonus was made some 44 weeks after the birth of Arjun, and was rejected by Centrelink on 14 May 2008 on the basis that it was made outside the statutory time limit of 26 weeks.

2.      The applicant sought review and on 12 June 2008 an authorised review officer affirmed that decision, as did the Social Security Appeals Tribunal on 24 July 2008.  On 25 August 2008, the applicant applied for review to this Tribunal.

ISSUES AND LEGISLATION

3.The issues for the Tribunal to determine are:

·      whether the applicant made a claim for payment of baby bonus within the statutory time limit; and, if not,

·      whether there are grounds for extending the period within which the applicant’s baby bonus claim can be made because of severe illness associated with the birth of the child.

4. Ms Gopalan made a claim for payment of baby bonus on 30 April 2008, which was rejected on 14 May 2008. Throughout that time, s 39(2) of the A New Tax System (Family Assistance) (Administration) Act1999 (“the Administration Act”) provided that the applicant was only eligible for payment of baby bonus if she made a claim within 26 weeks of Arjun’s birth. Then, as now, s 39(3) of the Administration Act provided for the statutory time limit for making a baby bonus claim to be extended if the respondent was satisfied that a claimant was unable to make a claim in normal circumstances because of “severe illness associated with the birth of the child concerned”. Indeed, there is no provision in the A New Tax System (Family Assistance) Act1999 (“the Act”) or the Administration Act for an extension of time on any grounds other than “severe illness associated with the birth of the child concerned”. Therefore other circumstances, however exceptional or special they might seem, are not capable of enlivening the discretion.

5. After Ms Gopalan applied for review to this Tribunal but before the hearing date, the Act and the Administration Act were amended by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008 (“the amending Act”). The amending Act (most relevantly schedule 2, items 1-4, 18, 19 and 22) commenced on 1 January 2009. Section 39(2) of the amended Administration Act now provides for a different time period in which to claim payment of baby bonus after the birth of a child: the 26 week time limit has been changed to 52 weeks.

EVIDENCE

6.      A hearing of this matter was held on 21 April 2009.  The applicant was represented by her husband, Dr Gopalan, and both gave evidence to the Tribunal by telephone.

7.      Dr Gopalan confirmed there was no severe illness associated with Arjun’s birth.  He stated that the baby bonus claim was not made within the 26 weeks then required by the legislation because in addition to the birth of Arjun, he lost his job and experienced housing problems.  Indeed, the family did not have a permanent address until after the 26 week time limit had expired.  He stated it was concerning that the claim form for payment of baby bonus required them to give a permanent address at a time they did not have one.  Dr Gopalan submitted the respondent should regard the claim in that context.  In addition, he referred positively to the earlier decision makers’ acknowledgement of and references to the family’s exceptional circumstances.

8. The applicant noted she had already written and talked about her position and circumstances. She also noted that the legislation had changed to extend the claim time limit from 26 to 52 weeks. She stated that she was “unlucky” and deserved the baby bonus payment because difficult circumstances (described above) had prohibited making the claim within the required time period of 26 weeks. The applicant submitted that the statutory time limit for making her claim for payment of baby bonus should be 52 weeks as provided for by the amended Administration Act.

9.      Mr Hamilton, for the respondent, described the applicant’s circumstances as “unfortunate” but pointed out that all were bound by the legislation.  He submitted that the amending Act did not apply in this case, despite the “exceptional circumstances”.

CONSIDERATION

10.     On the basis of the evidence and material before it, the Tribunal makes the following findings of fact:

·     The applicant’s son was born on 21 June 2007;

·     The applicant made a claim for payment of baby bonus on 30 April 2008, some 44 weeks after the birth of her son; and

·     The delay in making this claim was due to social circumstances and difficulties experienced by the family after Arjun’s birth, rather than severe illness associated with his birth.

11. The applicant submitted that the statutory time limit for making her claim for payment of baby bonus should be 52 weeks, as provided by the amended Administration Act. That submission was contested by the respondent, who provided a written “submission on applicable law”. I found the case authorities cited therein to be relevant and persuasive in discussing the accrued right of Ms Gopalan. Decided cases support the proposition that the “applicable law is that which was in existence at the date of the original determination”: see Re Secretary, Department of Social Security and Haughey (1995) 36 ALD 653 at 663–664 [30]–[33]. However, “questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions”: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 311 [92]; see also Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943. In this matter, it is not necessary to look further than the legislation in question.

12. Amendments to the relevant legislation are noted above (see paragraph 5). The effect of schedule 2, items 18 and 22(1)(a) of the amending Act on s 39(2) of the Administration Act and s 36(2) of the Act is that the new 52 week time limit only applies to those children born on or after 1 January 2009. The applicant’s son was born on 21 June 2007 and is therefore not subject to the legislative amendments. To be eligible for payment of baby bonus, Ms Gopalan must have made her claim within 26 weeks of the birth of her child. In fact, she made her claim on 30 April 2008, some 44 weeks after the birth of her son.

13. The Tribunal notes that in her application for review made on 25 August 2008, the applicant states: “I experienced an exceptional social circumstance that necessarily led to a delay in applying. This exceptional circumstance is not covered by the Act”. Further on in the application, the applicant also states:

“I appreciate that this appeal will go before an individual(s) who will also be hampered by the restrictiveness of the Act and will also come to the same conclusion as before. I therefore request that as there is no scope for any individual, except the minister to overturn the decision, as they can look beyond the Act, that this appeal be reviewed by the minister and the correct and sensible decision be made, that is grant my son the payment of the baby bonus due to my exceptional circumstance which is beyond the scope of the Act”.

14.     Earlier, after the birth of her daughter in December 2002, the applicant made a claim for maternity allowance to Centrelink within the prescribed period.  It therefore appears that the applicant and her husband were aware that a financial benefit was available from Centrelink on the birth of their child and that for the benefit to be claimed the appropriate form had to be completed and lodged with Centrelink.

15. The applicant submitted (and the Tribunal accepts) that her family experienced social difficulties during the 26 week time period after Arjun’s birth. As described above, these difficulties included Dr Gopalan losing his job and the need to find a new home. Section 39(3) of the Administration Act only provides for the statutory time limit to be extended in cases of “severe illness associated with the birth of the child concerned”. The Tribunal finds there is no evidence that the applicant or her son suffered any severe illness associated with his birth; this was confirmed by the applicant’s husband.

16.     The applicant made a claim for payment of baby bonus outside the statutory time limit of 26 weeks, and there are no grounds for extending this time limit.  The decision under review rejecting the claim for payment of baby bonus must be affirmed in accordance with the legislation as it existed prior to the commencement of the amending Act.

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed: .........[Sgd]....................................................................
             Mátyás Kochárdy, Research Associate

Date of Hearing  21 April 2009
Date of Decision  1 May 2009
Applicant was represented by Dr Gopalan (her husband)
Solicitor for the Respondent     Mr R Hamilton, Departmental Advocate