Rummeny and Secretary, Department of Family and Community Service S

[2003] AATA 803

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 803

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/118

GENERAL ADMINISTRATIVE DIVISION		)
Re		THERESA RUMMENY

Applicant

And

SECRETARY, DEPARTMENT

OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date15 August 2003        

PlaceBrisbane

Decision

The Tribunal decides:
(a)      the decision under review is set aside; and

(b)      the applicant is entitled to payment of parenting payment with effect            from 26 February 2002.

(Sgd) KL Beddoe
  Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – parenting payment – applicant received incorrect advice from department about eligibility for payment – valid claim for family tax benefit made – whether payment of parenting payment should be back-dated

Social Security Act 1991 ss 23(1), 500
Social Security (Administration) Act 1999 ss 3(2), 11, 15(1), 15(4), 29

A New Tax System (Family Assistance) Act 1999

Re Secretary, Department of Family and Community Services and Valori [2002] AATA 252

REASONS FOR DECISION

15 August 2003  Senior Member KL Beddoe          

1.      The respondent decided that the applicant was entitled to payment of parenting payment effective from 22 June 2002 but not entitled to have the payment back-dated to an earlier date.  The Social Security Appeals Tribunal affirmed that decision.  The applicant then sought review in this Tribunal. 

2. This matter was heard in Rockhampton. The applicant conducted her case with the assistance of her mother-in-law (Mrs Kym Rummeny). The respondent was represented by Mr McQuinlan. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents and further documents were tendered and marked as exhibits.  I add that the tendered documents should have been included in the “T” Documents but I am satisfied there was no prejudice to the applicant.

3.      Oral evidence was given by the applicant and her mother-in-law who I will refer to as “Mrs Rummeny”.  No evidence was called for the respondent.

4.      I make the following findings of fact:

(a)the applicant was expecting the birth of her child in December 2001 when she ceased employment and contacted Centrelink to find out if she was entitled to any benefits while unemployed and awaiting the birth;

(b)the applicant was told by an officer of Centrelink that she was not entitled to any benefits but should apply to Centrelink after the baby was born for family tax benefit and parenting payment (T4);

(c)baby Logan was born on 26 February 2002 at Rockhampton Base Hospital;

(d)for some time prior to Logan’s birth the applicant was suffering severe chest pain which, as it turned out, was wrongly attributed to the pregnancy;

(e)prior to birth the applicant suffered high blood pressure, was medivaced to Rockhampton and the birth was induced;

(f)the birth itself was without incident but the applicant continued to suffer the chest pains after the birth;

(g)while in hospital the applicant was given a booklet for claim of family tax benefit which she completed and personally lodged at the Centrelink office in Emerald on 4 March 2002 in company with Mrs Rummeny;

(h)the applicant lodged the claim with an officer identified as “Maria” and asked the officer whether she was entitled to any other benefits but got no reply;

(i)Mrs Rummeny then again asked the question as to entitlement to any other benefits and was told “No” – (it is not disputed that the answer given was wrong) but the Secretary did not give a written acknowledgment of the contact to the applicant;

(j)the applicant accepted the advice and she and Mrs Rummeny left the Centrelink office;

(k)shortly thereafter, on the same day, the applicant suffered a very severe attack of chest pain which was diagnosed as a gallstone attack by Dr Evans;

(l)thereafter the applicant was treated for further attacks with pethidine administered at Emerald Hospital and requiring her to stay in the hospital overnight;

(m)the applicant’s medical condition meant she was confined to the house, required assistance of family members, was unable to feed the baby, and was unable to have an operation so soon after the birth, on advice of the Flying Doctor;

(n)the applicant was placed on the waiting list at Rockhampton Hospital for a gall bladder operation but meanwhile depended on the pethidine injections administered at Emerald Hospital;

(o)she was eventually admitted to Rockhampton Hospital because of the continuing attacks and the operation was brought forward – she remained in the hospital for nearly two weeks and returned to Emerald in the early part of April 2002;

(p)the applicant was confined to the house for the next couple of weeks but then resumed activities away from home such as shopping;

(q)it was while shopping that the applicant compared notes with other mothers and became concerned that she was not receiving the correct amount of benefits from Centrelink;

(r)she discussed her concerns with Mrs Rummeny who at first responded by relying on the advice she had obtained from Maria at Centrelink, but subsequently came to the view that they should approach Centrelink again;

(s)on 22 June 2002 the applicant again approached Centrelink and was told that she was probably entitled to payment of parenting payment and should lodge a claim;

(t)a claim for parenting payment was lodged on 2 July 2002 (Exhibit B), was approved and paid with effect from 22 June 2002;

(u)Exhibit A is a copy of the claim lodged at Centrelink on 4 March 2002 and identified as “Claim for Family Tax Benefit – Maternity Allowance – Maternity Immunisation Allowance”;

(v)Exhibit B is a copy of the claim for parenting payment lodged at Centrelink on 2 July 2002;

(w)document T6 is a print-out of a computer record which evidences the lodgment of the claim (Exhibit A) on 4 March 2002 which I am satisfied was given to the applicant on or about 15 April 2003 as part of the “T” Documents, and is evidence of the contact by the applicant and Mrs Rummeny in relation to the applicant’s qualification for any other payment; and

(x)the applicant did not make a claim for parenting payment within 13 weeks after 4 March 2002.

Consideration

5.      I am satisfied that Exhibits A and B are different claim forms and ask some different questions in relation to the claimant and the claimant’s family.  There is, however, a marked similarity to the questions on the respective forms.

6.      The essential character of family tax benefit is to provide assistance, on an income tested basis, to families with children and it might be inferred for the benefit of the children.  On the other hand, the essential character of parenting payment is that of a pension or benefit intended to benefit a parent of a child under 16 years (the relevant concept here).  The pension or benefit is also subject to an income test.

7. Parenting payment eligibility is determined, in this case, by section 500 of the Social Security Act 1991.. There is no dispute that the applicant, as a member of a couple, qualified for parenting payment from the time of Logan’s birth except, it is said, because she failed to make a claim for parenting payment.

8.      I am satisfied that the information provided by the applicant on the claim for family tax benefit (Exhibit A) was sufficient for the respondent to determine, on the balance of probabilities, that the applicant was entitled to payment of parenting payment, as a member of a couple.

9. Section 11 of the Social Security (Administration) Act 1999 (“the Administration Act”) relevantly provides that a person who wants to be granted a social security payment (as defined in the Social Security Act 1991) must make a claim for payment.  Parenting payment is included in the definition of “social security payment”, being a payment under Chapter 2 of the Social Security Act. Section 11 is subject to the following provisions in Subdivision B.

10.     In the present case the applicant did not make a claim until 2 July 2002 (Exhibit B).

11. Sub-section 15(1) of the Administration Act reads as follows:

“For the purposes of the social security law, if:

(a)a person makes a claim for a social security payment; and

(b)the claim is an incorrect claim; and

(c)the person subsequently makes a claim for another social security payment for which the person is qualified; and

(d)the Secretary is satisfied that it is reasonable that this subsection be applied;

the person is taken to have made a claim for that other social security payment on the day on which he or she made the incorrect claim.”

12. Sub-section 15(4) is applicable on the facts of this case and reads as follows:

“For the purposes of this section, a claim made by a person is an incorrect claim if:

(a)the claim is for a pension, allowance, benefit or other payment under a law of the Commonwealth, other than this Act or the 1991 Act, or under a program administered by the Commonwealth, that is similar in character to a social security payment, other than a supplementary payment; and

(b)when the claim was made, the person was qualified for a social security payment, other than a supplementary payment.”

13.     The apparent difficulty with these provisions is that the claim for family tax benefit is not a claim for a social security payment.  While common understanding may well characterise a family tax benefit claim as a claim for social security payment, the question is whether the defined meaning of “social security payment” applies so as to exclude a claim for family tax benefit.

14.     “Social security payment” is defined in sub-section 23(1) of the Social Security Act 1991 in terms which do not include family tax benefit unless the contrary intention appears. That definition is applicable to the Administration Act (sub-section 3(2)).

15.     I can see no basis for finding that the words “social security payment” in paragraph 15(1)(a) (as above) can include family tax benefit unless a contrary intention appears in the section.

16. That contrary intention is found in sub-section 15(4) which widens the concept to include a claim for family tax benefit. It follows, in my view, that the Parliament intended that a claim for a benefit or payment under another law of the Commonwealth (in this case the A New Tax System (Family Assistance) Act 1999) is within the meaning of a claim for social security payment for the purposes of sub-section 15(1).

17. It also follows, in my view, that the applicant’s claim for family tax benefit was a correct claim for that benefit but an incorrect claim within the terms of section 15 of the Administration Act for the purposes of parenting payment.

18. I am satisfied that when the claim for family tax benefit was made by the applicant, she was a person qualified for parenting payment. I am also satisfied that it is reasonable that sub-section 15(1) of the Administration Act should be applied in the circumstances of this case.

19.     It follows that the applicant is to be taken to have made a claim for parenting payment when she made the claim for family tax benefit.

20. The applicant having made the claim on 4 March 2002, which is less than four weeks after Logan’s birth, is entitled to the benefit of section 29 of the Administration Act.

21.     If it is perceived that this decision is inconsistent with the decision of the Tribunal in Re Secretary, Department of Family and Community Services and Valori [2002] AATA 252, I note that in this case a specific enquiry was made of the respondent’s representative when the claim for family tax benefit was made and the respondent’s response resulted in an incorrect claim being made in the context of parenting payment.

22.     I should add that it is hard to understand why mothers of newborn babies are given a claim form for family tax benefit without a claim form for parenting payment either incorporated or attached.

23.     For these reasons the decision under review will be set aside and there will be substituted in lieu thereof a decision that the applicant is entitled to payment of parenting payment from 26 February 2002.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         Sarah Oliver
  Associate

Date of Hearing  14 May 2003 at Rockhampton
Date of Decision  15 August 2003

The Applicant appeared in person, assisted by Mrs K Rummeny  
For the Respondent                  Mr R McQuinlan, Departmental Advocate