Sivills and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 704

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

No: 2007/4962

General Administrative Division

Re: FRANCINE SIVILLS
Applicant

And: SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent

DIRECTION

TRIBUNAL:             Mr S E Frost, Member

DATE:                      15 August 2008

PLACE:                   Sydney

WHEREAS:

A.   The Tribunal released a written statement of reasons for the decision in this matter, dated 12 August 2008.

B.   It has come to the Tribunal’s attention that there was an error in the written statement.

C. The Tribunal wishes to amend the written statement so as to rectify this error and, wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975 (“the Act”).

NOW THE TRIBUNAL THEREFORE DIRECTS that the Registrar, pursuant to section 43AA(1) of the Act, alter the text of the written statement of reasons for the decision as follows:

1.The words “Date of Decision 12 August 2008” in the table following paragraph 12 of the written statement be replaced with “Date of Decision 4 August 2008”.

2.The words “Date of Written Reasons 12 August 2008” be inserted immediately after the alteration referred to in 1.

.....................[Sgd].....................

Mr S E Frost

Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 704

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4962

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANCINE SIVILLS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S E Frost, Member

Date4 August 2008

PlaceKiama and Sydney 

Decision For the reasons given orally at the hearing of this matter, the Tribunal affirms the decision of the Social Security Appeals Tribunal dated 12 September 2007. 

...................[Sgd]......................

Mr S E Frost
  Member

CATCHWORDS

SOCIAL SECURITY - Maternity Immunisation Allowance – requirement to make a claim – effective claim – claim must be made within 2 years after the birth of the child – substantial compliance – no effective claim – decision under review is affirmed

A New Tax System (Family Assistance) (Administration) Act 1999 – sections 38 and 39

REASONS FOR DECISION

12 August 2008 Mr S E Frost, Member        

1.      At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and my reasons were stated orally. The parties, pursuant to sub-section 43(2A) of the Administrative Appeals Act 1975, have requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision were transcribed by Auscript, the Commonwealth Reporting Service.  What follow are the reasons as transcribed, corrected where necessary for obvious errors.

The decision and reasons as recorded

3.      The formal decision that I am making is a decision to affirm the decision of the Social Security Appeals Tribunal (“SSAT”), which is dated 12 September 2007 and despatched from that Tribunal on 13 September 2007.  I will just deliver briefly my reasons for that.

4.      Maternity immunisation allowance is a non-income tested payment to encourage parents to immunise their children.  It is usually paid for children who have been fully immunised when they are around 18 months old.  It is not a payment that is made automatically.  It is necessary to make a claim before it can be paid. 

5. Section 38(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Act”) says that a claim to be effective must be made in a form and manner required by the Secretary and must also contain any information and any accompanying documents that the Secretary requires. Section 39(4) of the Act also says that the claim must be made within 2 years of the child’s birth.

6.      Francine Sivills gave birth to twins, Olivia and Patrice, on 11 June 2004.  She made her claim for maternity immunisation allowance in August 2006, which was about two months out of time.  Mrs Sivills has explained that the reason why she claimed late was that she had been told that she did not need to make a formal claim for the payment but it would paid to her automatically.  It seems that this information was given to her by someone at the Australian Childhood Immunisation Register. 

7.      Unfortunately, that information was wrong.  Payments are not made automatically but only in response to effective claims that are made for the payment.  The claim form that Mrs Sivills lodged in August 2006 was late and therefore cannot be regarded as an effective claim.

8.      The four essential pieces of information that are required by the formal claim form are the name and contact details of the applicant; the dates of birth of the children; the applicant’s tax file number and the children’s Medicare number.  The form does not actually require evidence that the children have been immunised.  Apparently the department cross-checks from the Medicare number to the immunisation register to make sure that the immunisation details are up-to-date.  Three of those essential pieces of information were already with Centrelink within two years of the children’s birth.

9.      Although it was clear that the formal claim form was out of time, I was prepared to entertain an argument that Mrs Sivills had made an effective claim for the immunisation allowance if it could be demonstrated that the fourth piece of information, the children’s Medicare number, had also been provided to Centrelink at some time prior to the children’s second birthday.  That would have amounted, in my view, to substantial compliance with the requirements of the law.  Mrs Sivills, herself, could not provide evidence that the Medicare number of the children had been provided to Centrelink within the two year period.  I therefore asked Ms Heggen, the departmental advocate, to undertake a search of Mrs Sivills’ file to see whether any notification by her of the children’s Medicare number, before their second birthday, could be found.

10.     Ms Heggen has informed me that there is no record of the children’s Medicare number and so it is clear that this alternative argument cannot be sustained.  Because Mrs Sivills did not make an effective claim for maternity immunisation allowance within two years of the children’s birth, I must affirm the decision of the SSAT that she has no entitlement to the payment.

The Secretary’s position

11.     For completeness, in relation to my approach as outlined in paragraph 9 above, I note the following exchange that took place after I delivered my  oral reasons:

MR FROST:   Ms Heggen, is there anything you think that I need to add to that?

MS HEGGEN:   No, Member.  We went extensively through the – I suppose that was the only other thing.  We went extensively through the [Family Tax Benefit] form which provided that there was an information booklet that would have notified the applicant about the necessity to make a claim within 2 years.  That was clearly set out in the information booklet.  The front of that form very clearly said, “If you don’t have one of these information booklets, ask for it”.  On page 30 of the claim form, which the applicant said in evidence that it was her signature, that actually says:

I declare the information provided in this form is correct.  I declare that I have received and am aware of the privacy notice in the information booklet.

So, as the respondent pointed out the other day, if the applicant had asked for that information booklet, either through the Medicare office, the Centrelink office at Shellharbour or by calling that free number, then the applicant would have been aware of that necessity to make a claim within the two‑year period.

MR FROST:   Yes.  I understand that argument.  Nevertheless, I’ve taken the view that if that information had been with the department, I could well have been content to decide this matter in Mrs Sivills’ favour.  I understand the Secretary takes a different position.

MS HEGGEN:   Yes.

MR FROST:   It may be necessary for me in the formal reasons to note the Secretary’s alternative argument.

MS HEGGEN:   All right, then.  Thank you. 

Conclusion

12.     The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member

Signed:         ..................[Sgd]..................................
  Ms R Prasad, Associate

Date/s of Hearing  24 July 2008 and 4 August 2008
Date of Decision  12 August 2008
Appearance for the Applicant   Self-represented
Solicitor for the Respondent     Ms Heggen, Centrelink Legal Services