SAAN; Secretary, Department of Families, Community Services and Indigenous Affairs and
[2007] AATA 1448
•20 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1448
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600235
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
SAAN
Respondent
DECISION
Tribunal Senior Member R W Dunne
Mr S J Ellis (Member)Date20 June 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and Payments – Maternity Allowance/Payment – claim for payment made out of time – “severe illness” – application for review of decision made out of time – “special circumstances” – decision under review affirmed
A New Tax System (Family Assistance) (Administration) Act 1999 ss 39(2), 39(3), 109D(1), 109D(2)
A New Tax System (Family Assistance) Act 1999 ss 36, 37
Re Zbrog and Secretary, Department of Family and Community Services [2003] AATA 1256 Re Hammoud and Secretary, Department of Family and Community Services [2006] AATA 174
Re Beadle and Director-General of Social Security (1984) 6 ALD 1REASONS FOR DECISION
20 June 2007 Senior Member R W Dunne
Mr S J Ellis (Member)1. A, who is the son of the respondent (“SAAN”) was born on 13 November 2003. SAAN made a claim for Maternity Allowance on 29 June 2004, which was not within 26 weeks of A’s birth. [Maternity Allowance was replaced on 1 July 2004 by Maternity Payment and is referred to as such in these reasons.] The claim was rejected by the applicant (Centrelink) by letter dated 7 July 2004, informing SAAN of her right to appeal the decision within 52 weeks of being notified of the decision.
2. SAAN failed to appeal the Centrelink decision within the prescribed time. However, on 6 December 2005, she requested a review and on 4 May 2006 an Authorised Review Officer affirmed the decision of the original decision-maker. On 3 July 2006, the Social Security Appeals Tribunal (“SSAT”) set aside Centrelink’s decision and substituted its decision that SAAN be granted Maternity Payment. On 7 August 2006, Centrelink applied to this Tribunal for a review of the decision of the SSAT.
3. At the hearing, Ms Jo Kitto (from Centrelink Legal Services Branch) appeared for the applicant and Ms Margaret Riley (from Welfare Rights Centre (SA) Inc) appeared for the respondent. SAAN gave evidence and no witnesses were called for the applicant. The T documents and the supplementary T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) were admitted in evidence (as Exhibit A1 and Exhibit A2, respectively). In addition, the following documents were admitted:
·report from Dr G dated 8 November 2006 (Exhibit R1);
·House of Representatives Second Reading Speech on the Social Security Legislation Amendment (Family Measures) Bill 1995 (Exhibit R2); and
·House of Representatives Explanatory Memorandum on the A New Tax System (Family Assistance) (Administration) Bill 1999 (Exhibit R3).
4. Upon the request of Ms Riley prior to the hearing, the Tribunal made an appropriate order under s 35(2)(b) of the AAT Act restricting the publication of evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal.
issues for the tribunal
5. The issues for the Tribunal are:
·whether SAAN was unable to make a claim for Maternity Payment because of severe illness associated with the birth of A;
·whether there were special circumstances that prevented SAAN from making an application for review of Centrelink’s decision, within 52 weeks of being notified of the decision, to reject her claim for Maternity Payment; and
·whether, in the circumstances, SAAN is eligible for Maternity Payment in respect of her son, A.
legislation
6. The legislation relating to the issues before the Tribunal is contained in the A New Tax System (Family Assistance) Act 1999 (“Act”) and A New Tax System (Family Assistance) (Administration) Act 1999 (“Administration Act”). Section 36 of the Act defines when an individual is eligible for Maternity Payment in normal circumstances, the relevant subsection in this matter being subsection (2), namely, where the individual is a parent of the child in respect of whom the claim is being made.
7. Section 39 of the Administration Act relevantly provides the period in which a claim for Maternity Payment can be made (subsection (2)) and allows for an extension to be granted (subsection (3)), in the following terms:
“‘Normal circumstances’ maternity payment claim must be made within limited period after birth etc. of child
(2)Subject to subsection (3), a claim for payment of maternity payment 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
….
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 payment 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.
…”
8. Section 109D of the Administration Act then relevantly provides the period in which an application for review of a decision refusing a claim for Maternity Payment can be made (subsection (1)) and allows for an extension to be granted (subsection (2)), in the following terms:
“109DReview applications—time limits applicable to review of certain decisions
Certain applications to be made within 52 weeks of notification of decision
(1)Subject to this section, an application for review under subsection 109A(1) of any decision (other than an excepted decision) must be made no later than 52 weeks after the applicant is notified of the decision concerned.
Exception—Secretary may extend time limits in special circumstances
(2) The Secretary may, if he or she is satisfied that there are special circumstances that prevented the applicant from making an application under subsection 109A(1) for review of a decision (other than an excepted decision) within the 52 weeks mentioned in subsection (1), permit a person to make the application after the end of that period and within such further period as the Secretary determines to be appropriate.
…”
background and evidence
9. At the time of the hearing, SAAN was 40 years of age and was the mother of five children (aged 3 years, 8 years, 10 years, 15 years and 16 years) when A was born. She lives with her husband and children in country South Australia, not far from the border with Victoria. She had experienced problems with the birth of her fifth child. The pregnancy had been a difficult one because she suffered from high blood pressure and other health problems throughout. The birth of A had not been planned and the thought of being pregnant again was devastating for SAAN. In March 2003, she consulted Dr G. The doctor said that there were ways to avoid the pregnancy, but SAAN’s concern was not the prospect of another child, rather the fear of having the kind of ill-health that had been associated with her last pregnancy. She became depressed, and was worried about the stigma that could arise from local townspeople seeing her as “loopy” as a consequence of her depression. She avoided shopping and found herself refusing to leave her home. She resisted seeking assistance locally for the rest of her family because of how she thought her depressive condition might be perceived.
10. SAAN’s fifth child had been born in July 2000. She had high blood pressure during the pregnancy and Dr G had prescribed medication for her condition. Then, in March 2003, Dr G initially prescribed Zoloft, which was the first anti-depressant that had ever been prescribed for SAAN. Prior to consulting with Dr G about her sixth pregnancy, she had never been treated for depression. However, she said she found Zoloft made her feel tired, lethargic and “numb”. She became angry and suffered mood swings. She was able to cope with the household, but only with the help of her eldest daughter. SAAN’s husband was busy, was often away all day attending to his business and depended on her to run the household.
11. A was born at a regional hospital in Victoria because of the shortage of doctors at SAAN’s local hospital. After the birth, she had been assessed by the hospital as a “special needs mother”. However, there was no-one locally to provide assistance. SAAN took Zoloft from April 2003 until approximately August 2004, 9 months after A’s birth. She still felt ill and attributed her feeling to the pregnancy and then to post-natal depression following A’s birth. The side effects included sweating when she ate food and extreme tiredness. She said she could not recall getting the claim form for Family Tax Benefit and Maternity Payment (Exhibit A1, T5), although she noted that she had filled out the form in June 2004. She said she would have claimed the Payment after the birth, had she felt well enough to do so. However, she was unable to think clearly at the time and was unaware of the 26 weeks time frame, after A’s birth, within which to make the claim. She did not recall receiving the Centrelink letter dated 7 July 2004 (Exhibit A1, T6), rejecting her claim for Maternity Payment, and explaining her appeal rights. She said she probably would have “tossed it” and was not aware of the 52 weeks time frame within which to appeal Centrelink’s decision.
12. In August 2004, Dr G prescribed a different medication for SAAN’s depression, called Aurorix. SAAN was required to undergo a period of transition of 6 weeks, during which she was weaned off Zoloft. To avoid recognition in her local town, she filled the Aurorix prescription in another country town centre. Initially, she started to feel and function better, although the change was slow. For the present, SAAN was finding that she was getting things back to normal. She no longer required her eldest daughter’s assistance in running the household. She proposed to undertake counselling, but would wait until her depression lessened. SAAN’s evidence was that she was not familiar with dealings with Centrelink in relation to family assistance payments and admitted that she did not know very much about the system. She preferred to avoid dealing with Centrelink by having her accountant claim Family Tax Benefit through the taxation system.
13. Ms Kitto referred SAAN to the letter from Dr G dated 1 May 2006 (Exhibit A1, T12, at page 82) and to the email note of a conversation between the SSAT and Dr G dated 4 July 2006 (Exhibit A1, T14). The letter from Dr G described SAAN as having depression in April 2000, which was around the time of the birth of her fifth child. In the email note, Dr G was reported as saying that the first record of depression was in April 2000, but she suspected that it may have been earlier than this and SAAN may not have been prepared to seek help. The email also reported Dr G’s confirmation that SAAN “had a long standing history of depression both pre and post natal”. SAAN’s evidence was that she had never spoken to Dr G about depression. The symptoms first came in March 2003 with her sixth pregnancy. When asked about her signing of the claim for Family Tax Benefit on 25 June 2004, SAAN said that this had taken place during the period of transition from Zoloft to Aurorix. She said she would have been aware that she had to complete the form, but was not aware that it had been lodged outside the prescribed period.
submissions
14. Ms Kitto’s submissions, as outlined in the applicant’s statement of facts and contentions and orally, were as follows:
(a) SAAN had failed to make a claim for payment of Maternity Payment within 26 weeks after A’s birth.
(b) SAAN’s depression was not a “severe illness”. She had a long-standing history of depression that dated back to at least April 2000. SAAN’s depression may have been exacerbated by A’s birth, however, a worsening of a pre-existing condition did not constitute a “severe illness associated with the birth of the child concerned”.
(c) SAAN’s depression was not “severe” as required by s 39(3) of the Administration Act. She was assessed as being eligible for special assistance with A, due to her depression. However, there was no evidence to suggest that SAAN sought increased assistance from support people available to her, such as her general practitioner, which might be expected if SAAN had been experiencing particular difficulty coping with activities of daily living.
(d) SAAN was able to function adequately to care for A and her other five children during the period April 2003 to August 2004. In these circumstances, her depression could not be characterised as being “severe”.
(e) In the alternative, SAAN’s circumstances do not fall within the ambit of being “special circumstances”. They were not sufficiently “exceptional, unusual or uncommon” to qualify for an extension of time to request a review of the decision under s 109D(2) of the Administration Act beyond the prescribed 52 week time limit. SAAN began to feel better in August 2004, when her medication was changed, and had sufficient time (until July 2005) in which to apply for a review of Centrelink’s decision.
15. In response, Ms Riley’s submissions, as outlined in her statement of facts, issues and contentions and orally, were as follows:
(a) SAAN’s depression was a “severe illness” associated with A’s birth. Although the evidence of Dr G was ambiguous, SAAN did not have a long-standing history of depression prior to the birth.
(b) SAAN suffered from post natal depression, associated with A’s birth, which is specifically exampled as a severe illness in the Explanatory Memorandum dealing with s 39(3) of the Administration Act (Exhibit R3). Reference was made to the decisions of Member Rear Admiral A R Horton AO in Re Zbrog and Secretary, Department of Family and Community Services [2003] AATA 1256 and in Re Hammoud and Secretary, Department of Family and Community Services [2006] AATA 174.
(c) The combination of SAAN’s circumstances following A’s birth, and at the relevant time, were “special circumstances” within the meaning of that expression in s 109D(2) of the Administration Act.
consideration and application of the law
Severe Illness?
16. The criteria permitting the exception to the 26 week rule in s 39(3) is precise, it being expressly related to “severe illness associated with the birth of the child concerned”. Severe illness is not defined in the Act or the Administration Act. In Re Hammoud (supra), Member Rear Admiral Horton provided assistance in understanding the expression (in paragraph 20 of his reasons):
“20. ‘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.”
17. SAAN’s evidence in relation to “severe illness” was that, prior to her pregnancy with A, she had never suffered from depression or discussed it with Dr G. She had been prescribed medication for high blood pressure, during the pregnancy with her fifth child, but that was all and she was unaware that there had been any mention of depression in Dr G’s medical notes. The evidence of Dr G paints a different picture. Her report to Centrelink dated 1 May 2006 (Exhibit A1, T12 at page 82) reads in part:
“This is to inform you that [SAAN] suffered from depression and post natally her depression became worse. She was not functioning as well. As a consequence she did not get her form in for maternity allowance in time.
Past History:
Date Condition
April 2000 DEPRESSION…”
Then, in the email note (to the SSAT) on 4 July 2006 of the discussion with Dr G on that day, the note reads:
“…
[Dr G] confirmed that [SAAN] had a long standing history of depression both pre and post natal. She said the first record of it was on [sic] April 2000 but she suspects it may have been earlier than this but [SAAN] may not have been prepared to seek help.
…”
However, in her report dated 8 November 2006 (Exhibit R1) there are statements that are inconsistent with her earlier report and conversation with the SSAT, and they read as follows:
“Please find following the report you requested for the above-mentioned patient.
1. Are you able to confirm that [SAAN] was suffering from severe depression as a result of the pregnancy, or alternatively, that the depression worsened as a result of the pregnancy?
[SAAN] was on no tablets for depression prior to the day she saw me to confirm the pregnancy of her 6th child. She started on tabs at 12 weeks of pregnancy.
2. Are you able to confirm that the depression, coupled with effects of the medication could be called a severe illness and could be associated with the birth of [A]?
I do recall her saying to me that she felt better with the tablets but that the tablets made her feel ‘numb’. Better in the sense that she was able to handle her children better without being easy to anger and she was more tolerant. She also felt sedated with the tablets and that it decreased her libido.
3. Are you able to confirm that this debilitating condition persisted until sometime after the medication change in August 2004?
She felt better with a change in tablets.”
18. The Tribunal found SAAN to be a credible witness, and seemingly not one to overstate her medical circumstances. The Tribunal has no reason to doubt the evidence relating to her illness during her pregnancy and the side effects she suffered from taking Zoloft during the period from April 2003 to August 2004. Although the evidence of Dr G, at one stage, differed from that of SAAN in relation to pre-existing depression, the Tribunal appreciates that country medical practitioners are often placed under severe pressures and, although medical notes may be taken, they may sometimes (on their face) present a different picture to that which might have actually taken place at the time. On balance, the Tribunal is satisfied that SAAN’s evidence as to depression correctly reflected the state of her health at the time of the birth of her fifth child and until she consulted with Dr G in March 2003.
19. In her submissions, Ms Riley referred to the House of Representatives Explanatory Memorandum dealing with s 39(3) of the Administration Act (Exhibit R3). In that Memorandum, post-natal depression was given as an example of a “severe illness”. Ms Kitto submitted that there were degrees and degrees of depression. There was post-natal depression that would leave someone in a psychiatric institution, and there was post-natal depression that would merely result in a lesser ability to function, but nevertheless still an ability to function. It was the former that was being exampled in the Explanatory Memorandum. The Tribunal is unable to accept this submission. It noted that the only example in the Memorandum of a severe illness was post-natal depression, and there was no suggestion that a severe form of the condition was required. In the Tribunal’s view and on a proper reading of the Explanatory Memorandum, post-natal depression, of itself, is an appropriate example of a severe illness.
20. On the evidence before the Tribunal, SAAN had a difficult period during her pregnancy and those difficulties had continued after A’s birth. Her evidence is supported by the report of Dr G dated 8 November 2006. The circumstances of her health in the months after the birth are considered to meet a reasonable definition of “severe illness” and the Tribunal so finds.
Special Circumstances?
21. In considering the expression “special circumstances” and although dealing with different legislation, the decision of this Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 is apposite, in particular, the following often quoted words of the Tribunal [at page 3]:
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
22. SAAN’s evidence was that, following the birth of her son, she was depressed, tired and became angry and moody. She was able to cope with her household, but only with the help of her eldest daughter. Her husband was often unable to help and she could not obtain assistance locally as a “special needs mother”. There was also the embarrassment she perceived of having to seek assistance when, as a mother, she should have been able to look after her family and the household herself. In addition, she was suffering serious side effects from her medication and these continued, even though she was able to change her prescription to a less invasive medication. She had few dealings with Centrelink and was unfamiliar with the arrangements regarding family assistance payments, and any direct contact with Centrelink personnel required 2 hours of travel. Although Ms Kitto submitted to the contrary, the Tribunal is of the view that, based on her evidence, SAAN had great difficulty in attending to her household and family duties, so that the obligations that arose which would enable her to gain her Centrelink entitlements were simply overlooked or were too physically onerous to deal with. Ms Kitto submitted that, had SAAN ended up in hospital because of her post-natal depression or a combination of all the other factors that were impacting upon her following the birth of her son (such as a large family, isolation, depression and the side effects of medication), all of these together would possibly have constituted special circumstances. The Tribunal is unable to accept this submission as reasonable. The Tribunal is satisfied that SAAN’s depression and her severely compromised level of functioning caused by her medication during the period from April 2003 to August 2004 and after that period constitutes special circumstances which prevented her from making an application for review of Centrelink’s decision within the 52 week prescribed period.
23. In light of all the above, SAAN satisfies the eligibility criteria for Maternity Payment.
decision
24. The Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard.........................................
AssociateDate of Hearing 20 February 2007
Date of Decision 20 June 2007Advocate for the Applicant Ms J Kitto
Centrelink Legal Services Branch
Advocate for the Respondent Ms Margaret Riley
Welfare Rights Centre
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