Re McMaster and Secretary, Department of Family and Community Services

[2002] AATA 955

DECISION AND REASONS FOR DECISION [2002] AATA 955

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1347

GENERAL ADMINISTRATIVE  DIVISION

Re:         ALLISON JUDITH McMASTER
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             6 September 2002
Place:            Melbourne

Decision:For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

1. SOCIAL SECURITY - maternity allowance - application lodged after prescribed period -whether extension possible
   A New Tax System (Family Assistance) (Administration) Act 1999 s39(2) and (3)

REASONS FOR DECISION

6 September 2002  G.D. Friedman, Member

1. This is an application by Allison Judith McMaster (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 20September2001.  The SSAT affirmed a decision of an authorised review officer of Centrelink dated 16 August 2001, which in turn had affirmed a decision by a Centrelink officer on 20 July 2001, to refuse the applicant's claim for maternity allowance because the application was made outside the time limit.

2. At the hearing of this matter on 6 September 2002 the applicant represented herself and Ms P. D'Cunha, an advocate with Centrelink, represented the Secretary to the Department of Family and Community Services (the respondent).

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T23), together with one exhibit tendered by the applicant (Exhibit A1) and one exhibit tendered on behalf of the respondent (Exhibit R1). 

BACKGROUND

1. On 17 January 2000 the applicant's son was born.  On 2 July 2001 the applicant lodged an application with Centrelink for family tax benefit, maternity allowance and maternity immunisation allowance.  On 2 July 2001 family tax benefit was granted from that date.  On 20 July 2001 Centrelink advised the applicant that the claim for maternity immunisation allowance was granted but the claim for maternity allowance was refused as the application was lodged out of time.  On 16August 2001 an authorised review officer affirmed that decision and the applicant sought review by the SSAT.  Following the decision of the SSAT the applicant, on 19October 2001, lodged an application with the Tribunal for review of the decision by the SSAT.

EVIDENCE

1. The applicant gave oral evidence and told the Tribunal that in April 2000 she visited the Fountain Gate office of Centrelink with the intention of claiming parenting payment.  She said that she was aware of the 26-week cut-off date after the child's birth for the application for maternity allowance to be made.  She explained that an officer informed her that she would not be entitled to the allowance because she was to receive family tax benefit through the tax system as a lump sum.  The applicant stated that she relied on this advice, and lodged her application in July 2001 together with her claim for family tax benefit as fortnightly payments.

2. The applicant said that the birth of the child was a difficult time for her and the child.  She said that while in hospital she did not see the need to read the Centrelink forms in detail.  She claimed that the incorrect advice from Centrelink was the sole reason for her failure to lodge the application for maternity allowance within the prescribed time.  The applicant produced a letter (Exhibit A1) written in August 2002 from her general practitioner in which the doctor stated that the applicant was suffering from postnatal depression after the birth.  The applicant stated that this diagnosis was not made at the time, and that she was suffering from tiredness due to the demands of the child.  She said that she could not rely on her husband for support, and she was relatively isolated, as she had no close relatives or friends in her area.

3. In relation to her difficulties following the birth, the applicant stated that she attended the Queen Elizabeth Centre on 27 July 2000, but she did not pursue an application to participate in the residential program.  She stated that she was not prescribed medication for her exhaustion, and she received no specific medical treatment.  She also said that she chose not to visit shopping centres or otherwise travel far with the child, although she was physically capable of doing so, as she had a motor vehicle and was able to leave the child with her husband for short periods.  

4. Ms D. Prow, sister of the applicant, gave oral evidence and confirmed that the applicant was in constant contact with her, seeking advice regarding the sleeping difficulties of the child.  Ms Prow told the Tribunal that the applicant seemed depressed, but did not appear to be receiving medical treatment.

CONSIDERATION OF THE ISSUES

1. Section 39 of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act) provides:

   39.(2)      Subject to subsection (3), a claim for payment of maternity allowance in normal circumstances is not effective if it is made later than 26 weeks after:

   (a)if the circumstances covered by the claim involve eligibility under any of subsections 36(2) to (4) of the Family Assistance Act - the birth of the child mentioned in that subsection; or

   (b)if the circumstances covered by the claim involve eligibility under subsection36(5) of that Act - the time the child mentioned in that subsection is entrusted to the care of the claimant.

   Extension of 26 week period in subsection (2)

   (3)          If the Secretary is satisfied that the claimant was unable to make a claim for payment of maternity allowance in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 26 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.

2. In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. The Tribunal notes that there is no dispute between the parties that the applicant lodged the application for maternity allowance almost twelve months after the 26-week time limit following the birth of the child. Therefore, the Tribunal finds that the applicant does not satisfy s39(2) of the Act and the claim for payment of maternity allowance was not effective.

3. The Tribunal accepts that the birth of the child was a difficult time for the applicant and the child and that the applicant was exhausted as a result of the demands of parenthood following the birth.  The Tribunal notes that the diagnosis of postnatal depression was made only in August 2002 and that the applicant received no specific treatment for this or any other serious medical condition.  She did not attend a residential or other program to assist with her difficulties.  The Tribunal also takes into account that the applicant had the means to travel to shops or Centrelink offices and she received some assistance from her husband.

4. In light of these factors, the Tribunal is not satisfied that the applicant was unable to make a claim for payment of maternity allowance in normal circumstances because of severe illness associated with the birth of the child concerned. Therefore, the applicant does not satisfy s39(3) of the Act and the Tribunal rules that the 26-week period may not be extended.

DECISION

1. The Tribunal affirms the decision under review.

   I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D. Friedman, Member
   (sgd)       Catherine Thomas
                 Clerk

   Date of hearing:  6 September 2002
   Date of decision:  6 September 2002
   Advocate for applicant:               Self-represented
   Advocate for respondent:            Ms P. D'Cunha, Centrelink