Re Zbrog and Secretary, Department of Family and Community Services

[2003] AATA 1256

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1256

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1141

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LIDIA ZBROG

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO 

Date12 December 2003

PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes its own decision that the applicant is eligible for Maternity Allowance under the provisions of A New Tax System (Family Assistance) Act 1999 in respect of the births of Zara and Paris Zbrog on 2 September 2002.

[Sgd]  Rear Admiral A R Horton AO 

CATCHWORDS

SOCIAL SECURITY – maternity allowance – application lodged after prescribed period – consideration of conditions for extension of time - extension granted

LEGISLATION

A New Tax System (Family Assistance) Act 1999 – sections 36, 37

A New Tax System (Family Assistance) (Administration) Act 1999 - sections 39(2) and (3)

CASELAW

Re McMaster and Secretary, Department of Family and Community Services [2002] AATA 955

REASONS FOR DECISION

12 December 2003  REAR ADMIRAL A R HORTON AO      

1. This is an application by Lidia Zbrog (“the Applicant”) for review of a decision of the Social Security Appeals Tribunal (“the SSAT”) dated 1 July 2003. The SSAT affirmed a decision of an authorised review officer (“ARO”) dated 2 June 2003, which in turn had affirmed a decision of a delegate of the Department of Family and Community Services (“the Respondent”) to refuse the Applicant’s claim for maternity allowance as the claim had been made outside the 26 week time limit imposed under normal circumstances under section 39 of A New Tax System (Family Assistance)(Administration) Act 1999 (“the Administration Act”).

2. At a hearing before the Administrative Appeals Tribunal (“the AAT”) on 21 November 2003, Mrs Zbrog represented herself. Mr E Thistlethwaite, an advocate for Centrelink, represented the Respondent. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (”the T documents”).

BACKGROUND

3. Mrs Zbrog arrived in Australia from Poland in June 1981. She has two daughters of a first marriage, born in 1983 and 1988 respectively. More recently she remarried and on 2 September 2002, at 42 years of age, she gave birth to twin daughters, Paris and Zara. On 6 May 2003, she lodged a claim for family tax benefit (“FBT”) and maternity allowance. The former was granted to date 6 May 2003, but the claim for maternity allowance was rejected on the basis that it had been lodged outside the 26 week statutory period, and the circumstances did not warrant the Respondent exercising discretion pursuant to section 39(3) of the Administration Act.

LEGISLATION

4. Section 36 of A New Tax System (Family Assistance) Act 1999 (“the Act”) defines when an individual is eligible for maternity allowance in normal circumstances, the relevant subsection in this matter being (2) wherein the applicant is the parent of the two children against whom the claim is being made. 

5. Section 39 of the Administration Act relevantly defines restriction on claiming as follows:

“(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)…

(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 a longer period as the Secretary considers appropriate”  

EVIDENCE

6.        The Applicant gave oral evidence that on leaving the Royal Hospital for Women after the birth of the twins, she was given the necessary form as required for claiming Family Tax Benefit (“FTB”) and family allowance.  In the normal course, an explanatory booklet accompanies the form, but in this case, the booklet was not provided.   Mrs Zbrog stated that she did not realise at that time that the maternity allowance had to be claimed within twenty six weeks of the birth of the children, and indeed, she felt some overload at the information being given by hospital staff in respect of she and her children. 

7.        She gave evidence as to the circumstances whereby she did not lodge the claim until 6 May 2003, that is some two months or nine weeks beyond the 26 week statutory period.  She had concerns as to her health during the pregnancy, given her age and the fact that it was to be a multiple birth.  In the event, one twin was in intensive care for some seven days, and in hospital for two weeks (as stated in evidence to the SSAT).   This child has a congenital systolic heart murmur, as confirmed in a report by Dr Tadeusz Nickelburg, her General Practitioner, on 23 June 2003 (T1 page 3), a condition which Mrs Zbrog stated was extremely worrying and which for two months or more kept her at home except when required to take the child for medical examination.   Mrs Zbrog stated that a more recent specialist opinion of Dr Harris is that the condition of baby Paris was now settled, but that she continues to worry about the state of the child’s health.

8.        As to her own condition, Dr Nickelburg diagnosed “osteoporosis and fractures in thoracic vertebrae (developed) following pregnancy”, as noted in his report of 23 June 2003.  Mrs Zbrog gave evidence that following bone density scans she was placed on the medication Fosamax, which she remains on to the present.  She referred to calcium deficiency as contributing in an adverse manner to the demands associated with looking after the two babies.  When asked by the Respondent whether she was able to leave her home in the first two months after the birth of the twins, she stated that she could not, due to her medical condition..  She referred to lower back pain – which the Tribunal assumes is relevant to the fractures diagnosed by Dr Nickelburg – which occurred after childbirth, and this severely restricted her mobility and options.   At times she was in severe pain, and had difficulty walking;  she saw Dr Nickelburg in about November 2000 when her difficulty in walking “through hip problems” was pronounced.  

9.       Mrs Zbrog described her husband as being very supportive, but because of his employment, absent for most days, and only able to provide direct support in the late evening.  She explained that whilst they knew that the family allowance could be claimed, they were not aware that such claim had to be lodged within the 26 week period after the births.  Without that knowledge, her husband did not wish to lodge the claim pending finalisation of his taxation return with his accountant.  In any event, her medical condition and that of one of the twins, as well as the demands of looking after both children, were of sufficient concern that early submission of the claim was not considered to be important.  When she did submit the form in May 2003, she found it to be quite misleading in that the advice as to the requirement to lodge it within 26 weeks was on the last page of the form, below the signature blocks of herself and her husband.   

CONSIDERATION

10.      The concern of the Tribunal in this matter is the paucity of medical evidence in support of evidence of Mrs Zbrog, given that the drafting of the criteria to permit an exception to the 26 week rule is so precise, it being expressly related to a “severe illness associated with the birth of the child”.   The Tribunal found Mrs Zbrog to be a credible witness, and seemingly not one to exaggerate the medical circumstances.  For example, when asked whether she herself – irrespective of what her general practitioner’s view might be – considered she had experienced any post natal depression, she answered no.  In that context, Mrs Zbrog presented as a person who coped stoically with adverse medical conditions.  Nonetheless, her evidence is that those medical conditions, superimposed on the duties of caring for two babies, were significant.

11. In the Explanatory Memorandum tabled when the Administration Act was before the House of Representatives in 1999, post natal depression is given as an example of a “severe illness”.. Severe illness is not defined in either the Act or the Administration Act. In final submission, the Respondent accepted the evidence of Mrs Zbrog as to the medical circumstances within the relevant 26 week period, and acknowledged the “severity of the osteoporosis” but opined that the definition must be one that “prevents a person lodging a claim within (the twenty six weeks period).”   That is the person must be “incapable of lodging the claim”.  In the view of the Tribunal, this is a harsh interpretation.   Indeed, it is not one that would necessarily fit with a medical condition of “post natal depression”, the example given in the Explanatory Memorandum.

12.      “Severe” is variously defined in the Macquarie Dictionary as “harsh; harshly extreme”, and “severe illness” is further defined as “grave”.   In turn, “grave” is variously defined as “momentous; important or critical; involving serious issues”.  Thus the word “grave” has a series of definitions which would appear to provide some flexibility as to the assessment of the seriousness of an issue or, in the medical context, the condition.  That is, whilst an illness might be described as grave when it is seen as a critical condition, seemingly it can also be described as grave when it is serious or important but not necessarily critical.  In the view of this Tribunal  there is thus some scope for interpretation when considering whether an illness or a medical condition is “severe” .  Certainly, the interpretation placed on it by the Respondent that the applicant must be “incapable of lodging the claim” during the twenty six week period cannot be considered as reasonable. 

13.      On the evidence before it, evidence accepted by the Respondent, the circumstances facing Mrs Zbrog after the birth of her two children were most difficult.  She herself suffered medical conditions of osteoporosis and fractures of the thoracic vertebrae as confirmed by Dr Nickelburg, and her evidence as to the resultant difficulties in nurturing and feeding two babies was strong.  Further, one of those babies had a potentially serious medical condition, which undoubtedly caused considerable worry, as she attested to.  The evidence of Mrs Zbrog has not been refuted, and notwithstanding the paucity of medical evidence over the 26 week period, the circumstances of mother and children in the months after the births are considered to meet a reasonable definition of “severe illness”, and the Tribunal so finds.

14.      In making this finding, the Tribunal has taken account of a recent decision in Re McMaster and Secretary, Department of Family and Community Services [2002] AATA 955, which found against the applicant. That matter was distinguishable from the situation of Mrs Zbrog in that the applicant was aware of the 26 week rule (but believed she was not entitled to maternity allowance, a belief she ascribed to incorrect advice from Centrelink). Further, and notwithstanding later advice from her medical practitioner that she had suffered post natal depression after the birth, she received no specific medical treatment or medication, and her evidence was that she was suffering tiredness due to the demands of the child.

15.      The Tribunal therefore puts aside the decision under review, and finds that the Applicant is eligible for the Maternity Allowance under the provisions of A New TaxSystem (Family Assistance) Act 1999 in respect of the births of Zara and Paris Zbrog on 2 September 2002.

16.     It is not inappropriate to make further comment on the legislation in this matter.  Whilst there may well have been good reason to minimise the delays in individuals claiming this benefit, the confining of the exception factor to severe illness associated with the birth of the child only, seems unnecessarily restrictive.   It pays no regard to ethnic considerations, the age of the mother or other factors that might be of relevance, family circumstances, nor the matter of multiple births and the implications this might have.   Some of those factors might have been relevant in this matter were the exception criteria less rigid.   The criteria also seems at odds with the concept of beneficial legislation, the emphasis placed on family assistance when the Bills were tabled, and the fact that this is a one-off payment.  The Tribunal makes these comments in good faith as an observation arising from the consideration of this claim. The Tribunal has not taken these observations into account in reaching a decision, such decision being reached entirely on whether the applicant can benefit from the exception clause in respect of “severe illness”.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO

Signed:         Neil Glaser
  Associate

Date of Hearing  21 November 2003
Date of Decision  12 December 2003
Representative for the Applicant    Lidia Zbrog 
Advocate for the Respondent        Emerson Thistlethwaite