SARAH TOWNSEND and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2013] AATA 217
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/4197
GENERAL ADMINISTRATIVE DIVISION )Re: Sarah Townsend
Applicant
And: Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Respondent
DIRECTION
TRIBUNAL: Dr K S Levy, RFD, Senior Member
DATE: 16 April 2013
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application as follows:
At page 6 of the decision where it refers to the parties, next to the word “Applicant”:
1. Delete the words “In person”; and
2. Insert the words “No appearance”.
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Senior Member
[2013] AATA 217
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4197
Re
SARAH TOWNSEND
APPLICANT
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT
DECISION
Tribunal Dr K S Levy, RFD, Senior Member
Date 11 April 2013 Place Brisbane The Tribunal affirms the decision under review.
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Dr K S Levy, RFD, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Baby bonus – Effective claim – Statutory requirement for claim to be lodged within 52 weeks of birth – Claim lodged outside of time limit – Statutory exception not applicable – Decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth) s 36
A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) ss 36, 38, 39
CASES
Re Favell and Secretary, Department of Family and Community Services [2006] AATA 127
Re O'Neill and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 2060
REASONS FOR DECISION
Senior Member Dr K S Levy, RFD
INTRODUCTION
Sarah Townsend, the applicant in this matter, made application for baby bonus in respect of her son, Charlie, who was born 26 October 2010. The application was rejected as it was found not to be an effective claim.
Ms Townsend sought a number of reviews of that decision. It was reviewed by the original decision maker, an authorised review officer and then a formal review by the Social Security Appeals Tribunal was undertaken. In all of those reviews the original decision was found to be correct. She has now appealed to this Tribunal for further review of the decision.
EVIDENCE
Ms Townsend provided evidence that she had made application for baby bonus in respect of her two previous children and the claim had been recognised as being an effective claim. In respect of the present claim, it was received by the Department on 8 February 2012. Ms Townsend claims in her evidence before the Tribunal that she had sent a claim to the Department in May 2011. The Department however maintains there is no record of having received that claim.
CONSIDERATION
Eligibility for baby bonus is governed by s 36 of the A New Tax System (Family Assistance) Act1999 (Cth), and there is no issue before the Tribunal that Ms Townsend does not meet those statutory requirements.
This claim is predominantly governed by the following statutory provisions of the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) (“the Act”):
36 Need for a claim
The only way that a person can become entitled to be paid baby bonus is to make a claim in accordance with this Division.
38 How to claim
…
(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; and
(aa) in the case of a claim for baby bonus—the claim contains an estimate of the sum of:
(i) the individual’s adjusted taxable income; and
(ii) if the individual is a member of a couple on the day the claim is made—the adjusted taxable income of the individual’s partner;
for the 6 month period mentioned in paragraph 36(2)(d), (3)(e), (4)(c) or (5)(d) of the Family Assistance Act; and
(b) in the case of a claim for baby bonus in normal circumstances—the tax file number requirement in section 38A has been satisfied in relation to the claim; and
(c) in the case of a claim by an individual for baby bonus because of the death of another individual—the tax file number requirement in section 38B has been satisfied in relation to the claim.
39 Restrictions on claiming
“Normal circumstances” entitlement must not already have been determined, or be awaiting determination, on a previous claim
…
(2) Subject to subsections (3) and (3A), a claim for payment of baby bonus in normal circumstances is not effective if it is made later than 52 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 subsection 36(5) of the Family Assistance Act—the time the child is entrusted to the care of the claimant.
Extension of 52 week period in subsection (2)
(3) If the Secretary 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, the Secretary may extend the period of 52 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.
The relevant statutory provisions in regard to making a claim are relatively strict in their application and become evident by the provisions set down in Division 3 of the Act. An applicant must make a “claim” (s 36). A claim will not be effective unless it is made as required by the Secretary and include any information and documents which are required. In addition, a claim for baby bonus, as in this case, must be accompanied by the individual’s adjusted taxable income (s 38(2)). Importantly in this case, under s 39(2) of the Act, an eligible applicant must make an application within the 52 weeks after the birth of the child, or it is not effective.
In s 39(3) of the Act, the Secretary may extend that 52 week period but only where there has been severe illness associated with the birth of the child concerned. There is no such evidence which has been presented here. Also, in this case, there is no evidence as contended by the applicant that she lodged a claim at any time prior to the formal application on record which was received on 8 February 2012.
The respondent referred me to Re Favell and Secretary, Department of Family and Community Services [2006] AATA 127 and also Re O’Neill and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 2060. The reasoning in both of those decisions makes it clear that the strict application of the words of the sections must be complied with and the mere posting of an application on the deadline date is not sufficient as the claim must actually be received by the Department within 52 weeks. Equally importantly, as the claim must be actually received within the statutory time period in order to be effective, some vigilance on the part of the applicant almost requires the applicant to get confirmation that the application has been received.
For the applicant to have satisfied the statutory requirements, as her son was born on 26 October 2010, she should have lodged an application by 25 October 2011. The application on record was received on 8 February 2012 and is, therefore, over three months outside the statutory period of 52 weeks.
Given the strictness of the legislative provisions the claim made by Ms Townsend was not an effective claim and there is no evidence which can point to the application having being lodged as an effective claim.
DECISION
In the circumstances the decision of the Department must be affirmed.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD.
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Associate
Dated 11 April 2013
Date of hearing 19 February 2013 Applicant In person Advocate for the Respondent Jasmine Forsyth
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