O'Neill and Secretary, Department of Families, Community Services and Indigenous Affairs

[2007] AATA 2060

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2060

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1970

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		INGRID AND ASHLEY O'NEILL

Applicants

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

Respondent

DECISION

Tribunal Dr Gordon Hughes, Member

Date14 December 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Dr Gordon Hughes

Member

SOCIAL SECURITY ‑ claim for maternity payment – claim lost in mail – whether applicants complied with requirement to lodge claim within 26 weeks of child's birth – lodgement not effective until claim actually received and logged by respondent 

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

Acts Interpretation Act 1901 s 29

Re Favelle and Secretary, Department of Family and Community Services [2006] AATA 127

REASONS FOR DECISION

14 December 2007 Dr Gordon Hughes, Member        

1.      The Applicants are seeking review of a decision by the Social Security Appeals Tribunal (SSAT) dated 11 April 2007.  The SSAT affirmed a decision by Centrelink dated 7 February 2007 to reject the Applicants' claim for maternity payment in respect of their child, Riley O'Neill.  Centrelink is the service provision agency for the Department of Families, Community Services and Indigenous Affairs.

2.      The principal issue for determination by the Tribunal was whether the Applicants lodged a claim for maternity payment within the period prescribed by the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act).  The Applicants claimed to have posted their application within the period set out in the Act but the Respondent had no record of receiving it.

3. Section 36 of the Act states:

The only way that a person can become entitled to be paid … maternity … allowance is to make a claim in accordance with this Division.

4. Section 38 of the Act states, in relation to the claim procedure:

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

(a)maternity…allowance in normal circumstances…

(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…

5. Section 39(2)(a) of the Act provides that a claim for maternity payment in normal circumstances is not effective if it is made later than 26 weeks after the birth of the child. 

6.      Riley O'Neill was born on 10 January 2006.  The 26 week period prescribed by the Act for lodgement of a claim for maternity payment expired on 11 July 2006.  The Applicants claim to have posted the claim for maternity payment between 4 and 10 June 2006, within the requisite 26 week period. 

7.      The Respondent contended that the claim was not received until 13 November 2006.  The claim form received by the Respondent on 13 November 2006 was in fact the Applicants' second claim form, despatched outside the 26 week period, after they had ascertained from Centrelink that there was no record of the first claim form having been received.

8.      The Applicants asserted that they were entitled to submit the claim by post, and that this constituted the effective making of a claim, given the statement on the form to the following effect:

Please lodge this form, or post it to, your nearest Family Assistance Office.

9.      Mr M Todd, a Centrelink advocate representing the Respondent, was prepared to concede that the Applicants had posted their claim form between 4 and 10 June 2006 as claimed.  He was not prepared to concede, however, that the claim had been received by the Respondent.  He observed – and Mr O'Neill conceded – that it was simply not possible to determine how the mail had gone astray or who was responsible.  The Applicants did not dispute that the Respondent had no record of having logged the receipt of the claim at any stage. 

10. The Applicants relied upon section 29(1) of the Acts Interpretation Act 1901 (the Acts Interpretation Act) which states:

Where an Act authorises 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.

11. The Respondent contended that section 29(1) of the Acts Interpretation Act was irrelevant to the present case. The Tribunal agrees with the Respondent – section 29(1) contemplates circumstances in which an Act authorizes or requires that a document be served by post.  In this instance there was no legislative requirement to this effect.

12. The applicability of section 29(1) of the Acts Interpretation Act has been considered previously by the Tribunal. In ReFavelle and Secretary, Department of Family and Community Services [2006] AATA 127 the Tribunal considered an appeal against a determination that a claim had been lodged more than 26 weeks after the birth of the applicant's child. In that case, the applicant contended that section 29(1) of the Acts Interpretation Act supported her contention that her claim should be taken to have been received by Centrelink in the ordinary course of post. This Tribunal agrees with the conclusion reached in that instance:

That provision is usually relied upon by a party in the respondent's position to enable it to deem that documentation has been served on a person, typically, in the applicant's position.  A pre-condition to the operation of that provision is that there be an act authorising or requiring that any document be served by post.  There is nothing in the FAA Act which provides any authorisation or requirement that the claim form be posted to Centrelink, although I accept that this is a legitimate method of forwarding material to a Centrelink office. 

13. The Act does not permit the Secretary of the Department of Families, Community Services and Indigenous Affairs (the Secretary) to exercise any discretion in the present circumstances. Section 39(3) of the Act states that the Secretary may exercise a discretion to extend the 26 week period, but only if he is :

… satisfied that the claimant was unable to make a claim for payment of baby bonus in normal circumstances because of severe illness associated with the birth of the child concerned…

It was not contended that s 39(3) had any application in the present case.

14.     The facts of this case – and the unavoidable conclusion – are simply stated, yet unfortunate.  The Act requires a claim form to be lodged within a specified period.  The Act does not stipulate that submission of a claim form by post satisfies the requirement of lodging, although Centrelink has stipulated in effect that a claim will be accepted for lodgement if it is received by post.  This is a fine distinction from a legal perspective and it is quite understandable that the distinction would be lost on many, probably a majority, of people reading the claim form.  It might be contended that a prudent claimant would telephone Centrelink to confirm that the posted claim form had been received; but it is understandable that many claimants would assume that, by acceding to the Respondent's invitation to post the claim form for lodgement, they had complied with the requisite formalities.  Certainly, future scenarios of a similar nature could be avoided if the claim form included an admonishment to claimants that they bear the risk of mislaid mail and that they would be well advised to seek verbal confirmation from Centrelink that the posted claim had been received. 

15.     Be that as it may, the posted claim form was not, for whatever reason, lodged within the timeframe prescribed by the legislation.  It was posted to the Respondent but it went astray.  The Applicants failed to discharge the onus of ensuring the lodgement process had been successfully completed.

16.     For the above reason, the Tribunal affirms the decision under review.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr Gordon Hughes, Member

(sgd):   Dianne Eva

Clerk

Date of Hearing:  27 September 2007
Date of Decision:  14 December 2007
Advocate for the Applicants:        Self‑represented
Advocate for the Respondent:      Mr M. Todd, Centrelink Legal Services Branch