Taleski and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1483
•28 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1483
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600802
GENERAL ADMINISTRATIVE DIVISION ) Re VALENTINA TALESKI Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date28 June 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review but strongly recommends an Act of Grace payment of $3000 to Mrs Taleski on the basis of probable administrative error on the part of the Respondent. (sgd) E.A. Shanahan
Member
SOCIAL SECURITY – maternity payment – claim that application lodged within 26 week period from child’s birth – no documentary evidence at Medicare or Centrelink of claim lodged in time – other documents said to have been lodged at the same time found – enquiries made to Medicare and The Royal Women’s Hospital of little assistance.
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999 s 36, s 38, s 39
Financial Management and Accountability Act 1997
Social Security Act 1991
Secretary, Department of Social Security v Cooper (1990) 26 FCR 13
REASONS FOR DECISION
28 June 2007 Miss E.A. Shanahan, Member 1. Mrs Valentina Taleski (the Applicant) gave birth to her daughter Stephanie at 7pm on Saturday 8 October 2005 and both were discharged from hospital on Tuesday 11 October 2005 at 12.30pm.
2. Mr Steve Taleski, who represented his wife, stated that on 18 January 2006 he lodged a Maternity Payment Form (MAT form), Medicare Notification and Family Tax Benefit form, along with a Carer’s Registration form in the name of his mother, Miladinka Taleska. These forms were lodged at the Medicare office at 120 Collins Street, Melbourne. Mr Taleski worked in the same building. Medicare offices at that time provided a form collection service for Centrelink. Centrelink is the service delivery agency for the Department of Families, Community Services and Indigenous Affairs (the Respondent).
3. When Centrelink did not acknowledge or pay any benefits, and as Mr Taleski was lodging a claim for Rent Assistance, on 10 April 2006 he made enquiries as to the status of the maternity claim. He was told there was no record of the document being lodged on 18 January 2006 and that he must lodge a further MAT form. He was advised that the required form could be obtained from Centrelink. Mrs Taleski (the Applicant) then recalled she may have another MAT form she received while still in The Royal Women’s Hospital. Mr Taleski completed and lodged this form on 14 April 2006 and Centrelink received it on 20 April 2006. This was some six days after the 26 week period for the MAT form expired. On 15 May 2006 the original decision maker rejected the claim as being out of time. An Authorised Review Officer (ARO) affirmed this decision on 21 June 2006. Mrs Taleski sought review of the decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the decision on 8 August 2006 and Mrs Taleski lodged an application for review by the Administrative Appeals Tribunal on 30 August 2006.
4. The Applicant was represented by her husband Mr Steve Taleski and the Respondent by Mr Martin Pike, a Centrelink advocate. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents). Mr Taleski tendered the following documents:
Exhibit A1An annotated letter from R. Jeyendran dated 11 May 2006
Exhibit A2Statutory Declaration dated 24 February 2007 signed by Mr and Mrs Taleski
Exhibit A3A copy of the Birth Certificate of Stephanie Taleski issued on 17 October 2005
After the Hearing and as directed by the Tribunal, Mr Taleski provided:
extracts from The Royal Women’s Hospital pamphlet entitled Having your baby at The Royal Women’s Hospital and
a Bounty Pregnancy Book issued by the Royal Women’s Hospital.
After the Hearing and at the Tribunal’s direction, the Respondent provided:
a letter from Ms Elizabeth Kennedy of The Royal Women’s Hospital dated 3 April 2007;
a letter from Ms Elizabeth Kennedy dated 3 May 2007;
a letter from Melinda Smith, Executive Support Manager of Medicare Australia dated 28 February 2007; and
a letter from Melinda Smith, dated 13 April 2007.
EVIDENCE BEFORE THE TRIBUNAL
Mr Steve Taleski
5. Mr Taleski said his wife Valentina was in The Royal Women’s Hospital for three days, from 8 October 2005 to 11 October 2005. Following the birth of their daughter Stephanie on 8 October 2005 she was extremely tired and concentrated her time on her new-born daughter. He said that she received numerous small bags of pamphlets but she did not read or look at these in hospital. Mr Taleski took them home after his visits to the hospital.
6. Stephanie’s birth was registered by Mr Taleski and the Birth Certificate was issued on 17 October 2005 (Exhibit A3).
7. On 18 January 2006 Mr Taleski attended the Medicare Office at 120 Collins Street Melbourne to lodge the so-called Baby Bonus Payment (properly called the Maternity Payment) (MAT) form, Family Assistance forms, Medicare Notification and also to register his mother Miladinka Taleska as a carer as his wife Valentina was hoping to return to work in the near future. Mr Taleski confirmed the Tribunal’s understanding that it was the Macedonian practice for married females to have their surnames ending in an a where the male partner’s surname ends in an i. He advised that this wife had chosen not to follow this custom (though his mother did). Hence his wife’s surname is the same as his, that is Taleski with an i. Mr Taleski said he photocopied his mother’s one page carer application at work but did not copy the 30 page MAT form as this would be an abuse of his employer’s photocopying services. Mr Taleski had attached to this MAT application a copy of Stephanie’s Birth Certificate in accordance with the instructions re proof of birth.
8. Mr Taleski chose to lodge the application at the Medicare office as it was in the same building as his place of work. He said he handed the papers to a young Medicare employee with his mother’s application for Carer Payment on top of the pile. He perceived the Medicare officer to have little knowledge of what to do with the applications. She did not photocopy any of the documentation nor did she give him a receipt.
9. The MAT application form had been found in one of the bags distributed to Mrs Taleski in October 2005.
10. Mr Taleski said he attended the same Medicare office on 10 April 2006 to lodge a Rent Assistance application form and took the opportunity to query the status of his 18 January 2006 applications. He had assumed these were still being processed as nowhere in the instructions had there been any advice as to when the baby bonus would be paid. He was advised that there was no record of receipt of the 18 January 2006 applications and was advised to attend the Centrelink office to obtain new forms and complete them and lodge them. When he told his wife of the day’s events, she said they already had another MAT form. This turned out to be the so-called original application form, certified by the attending midwife Sara de Houver. This form was completed on 14 April 2006 and lodged at the Medicare office on 18 April 2006 and received by Centrelink on 20 April 2006.
11. On 12 May 2006 the Taleskis received a letter dated 11 May 2006 from Centrelink, with an enclosed form to be filled in and returned within 14 days (Exhibit A1). This letter was signed by R. Jeyendran. Mr Taleski’s annotated copy of this exhibit states that he rang the author to ask why a further set of claim forms had to be completed and was told to disregard the request and it will be o.k. (Exhibit A1).
12. On 31 May 2006 R. Jeyendran wrote again to advise that on 15 May 2006 he/she had made the decision …not to pay you the Maternity Allowance (T10, p 29) as the claim was made outside the …26 week period from the birth of your child (T10, p 29).
13. Mr Pike cross-examined Mr Taleski about his evidence to the SSAT. Mr Taleski challenged the recording of his evidence by the SSAT. He contended that the implication of the evidence as recorded by the SSAT, namely that he would have lodged the carer’s application in his mother’s name but would not have claimed a $3,000 baby bonus made no sense.
DOCUMENTARY EVIDENCE
14. The relevant documentary evidence has already been referred to.
15. In addition, the Taleskis provided sworn Statutory Declarations (Exhibit A2) drafted on 24 February 2007 in support of their claim.
SUBMISSIONS
16. At the end of the hearing Mr Pike submitted that the Applicant’s case was based on three contentions: that she had been issued two MAT forms by The Royal Women’s Hospital; that Medicare in January 2006 had failed to register the application forms; and that Centrelink had continued to write advisory letters after the original decision rejecting the claim. While not challenging Mr Taleski’s honesty, Mr Pike questioned the Applicant’s and Mr Taleski’s recollection of events. He argued that on the balance of probabilities the first two contentions were such that the Tribunal should reject the Taleskis’ claim.
17. At the completion of the evidence the Tribunal advised it was not in the position to make a decision without further evidence and requested the parties, mainly the Respondent, to obtain further information from Medicare and The Royal Women’s Hospital in an effort to substantiate or negate the Applicant’s claims. The Tribunal also provided for the Applicant to make her final submission after this information was obtained. The Tribunal documented its areas of concern and requested Mr Pike, on behalf of the Respondent, to convey the Tribunal’s queries. The Tribunal commends Mr Pike highly for his efforts in communicating the Tribunal’s request. He ascertained that the SSAT did not have any transcripts of its hearings. The Tribunal had nominated, after its own telephone enquiries, Ms Tania Farrell, Director of Maternity Services at The Royal Women’s Hospital and Ms Sue McGorlick, Local Liaison Officer of Southern Cross Medicare Office formerly of 120 Collins Street Melbourne (at the relevant time) as the individuals who could provide the information the Tribunal was seeking. Neither of these individuals dealt with the Tribunal’s queries as conveyed by Mr Pike.
18. The Medicare enquiry was answered by a Miss Melinda Smith on 28 February 2007. She documented the shift of the relevant Medicare offices from the ground floor, 120 Collins Street to the third floor of that building and then, as of 25 November 2006, to 121 Exhibition Street Melbourne (known as Southern Cross). None of this information was relevant to the Tribunal’s queries. The letter also stated that as of 1 July 2000 limited Family Assistance Services commenced in all Medicare offices and Extended Family Assistance Services commenced at City East (formerly 120 Collins Street) on 29 May 2006.
19. Further enquiries by Mr Pike, at the Tribunal’s instigation, resulted in Ms Smith providing the procedure for collection, redirection of maternity payment forms in January 2006 as follows:
·Receiving staff member stamps all forms showing date, Medicare office name and a place to enter the staff identifier number.
·Tear off section at bottom of form is stamped and returned to customer as a receipt.
·All forms collected for the day are entered onto a spreadsheet which capture the type of form, the CRN or date of birth, a list of each attachment (eg: photocopies of passport, birth certificates) and whether the form came over the counter or left in the office drop box.
·The form is signed by the preparer and then photocopied.
·The original is then attached to the forms and the photocopy would be stored in a log in the branch.
·All documents, along with the original signed list would be placed in a courier bag and sent to Centrelink.
20. The T-documents contained a stamped copy of Mrs Miladinka Taleska’s application for registration as a child care provider dated 15 January 2006 (T3, p 10). This document has been stamped 18 January 2006 and apparently came to light after further searches were made by the ARO, Mr Ken Bruton (T14, p 33).
21. The letter sent to The Royal Women’s Hospital was addressed to Ms Tania Farrell but was answered by Ms Elizabeth Kennedy, Corporate Counsel. Ms Kennedy stated that while it was not impossible that parents of a newborn could receive two MAT forms, it was improbable. As the question of improbability was one for the Tribunal, a more detailed list of questions was posed to Ms Kennedy. She then outlined the procedure at The Royal Women’s Hospital in a letter dated 3 May 2007:
…
After the birth of a baby at the Royal Women’s Hospital, the mother (not the father) is given a Maternity Payment Form (MPF) and a birth registration form to complete and send to the Centrelink Office and Register, Births Deaths and Marriages respectively.
The MPF is signed/stamped by the midwife before it is handed to the mother, and an entry to this effect is made on the “care map – critical pathway” document in the medical file, by the midwife. The mother signs to acknowledge receipt of the form and this written acknowledgement is also placed in the medical file.
There are no formal instructions, such as a manual, provided on the ward. Midwives follow the care map and within approximately 24 hours of delivery, birth registration and family allowance forms are given out. A sample care map is enclosed and this point is highlighted.
The medical record in this case contains the care map signed by the midwife on 8 October, and a signed acknowledgement from the mother, dated 9 October.
Our records show that Mrs Taleski was admitted to RWH on 8 October 2005 at 0225 hours. Stephanie Taleski was, according to the records of the Royal Women’s Hospital, born on 8 October 2005 at 1900 hours. Mother and baby were discharged on 11 October 2005 at 1230.
I am not a liberty without patient consent to release documents from the medical file. I would of course produce it to the Tribunal on receipt of a subpoena…
22. The Tribunal provided a copy of this letter to Mr Taleski; who then contacted The Royal Women’s Hospital by telephone in order to obtain a copy of his wife’s care plan. He was advised he would have to lodge a request under the Freedom of Information legislation and that The Royal Women’s Hospital would take at least three months to respond. (Mr Taleski’s advised the Tribunal of this at a Telephone Directions Hearing of 14 May 2007). At the Telephone Directions Hearing Mr Taleski also informed the Tribunal that his wife was now pregnant with their second child and had attended The Royal Women’s Hospital and had been provided with several pamphlets, one of which was printed in June 2005 and the other early in 2007.
23. The June 2005 pamphlet states under the heading of Financial Support and Benefits:
Once you have your baby, you will receive a package at the hospital which includes claim forms for government payments that you may be entitled to now you are a parent.
24. The more recent (2007) pamphlet (page 77 of same) details the so-called Bounty Pregnancy Book and family assistance benefits. It appears that after birth the mother is given a Mother to be bag including a Your Guide to Family Assistance brochure, a New Mother bag and a Mother and Baby Gift Pack. This tallies with Mr Taleski’s evidence: that following Stephanie’s birth his wife received several bags of printed information. However, Ms Kennedy’s letter of 3 May 2007 states that the midwife (presumably Sara de Houver) completed and signed the care plan regarding Stephanie Taleski’s birth on 8 October 2005. A signed acknowledgement from the mother was obtained on 9 October 2005. There is no advice as to who obtained this acknowledgement.
25. The Tribunal did consider summonsing Mrs Taleski’s care plan from The Royal Women’s Hospital. However, Mr Pike argued that this would prolong the decision-making process and not necessarily resolve the issues and Mr Taleski was essentially of the same opinion.
RELEVANT LEGISLATION
26. The entitlement to the MAT is set out in A New Tax System (Family Assistance) Act 1999 and the A New Tax System (Family Assistance (Administration) Act 1999 (FAA Act).
27. Section 36 of the FAA Act outlines the manner in which a claim is to be made and s 38(2) states the manner and form of the application and the required accompanying documents.
28. Section 39 of the FAA Act states that the application for MAT is not effective if it is made later than 26 weeks after the birth of the child.
29. Section 39(3) of the FAA Act provides an exception to this 26 week time frame stating:
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.
30. Section 39(3) is the only discretionary power vested in the Minister. There is no provision made for an administrative error, such as that contained in the s 1237A(1) of the Social Security Act 1991.
SUBMISSIONS
31. Mr Pike submissions are reported earlier.
32. Mr Taleski’s submissions were made by telephone on 11 May 2006. He refuted the Respondent’s contentions and relied on the evidence presented to the Tribunal on behalf of his wife, the Applicant, Mrs Valentina Taleski.
THE TRIBUNAL’S DELIBERATIONS
33. The Tribunal found Mr Taleski to be an honest witness and well informed with respect to MAT payments and other Commonwealth Government-provided financial assistance to parents of newborn children. The ARO, Mr Bruton, in the course of reviewing the primary decision of the delegate of Centrelink, checked the records of Mr Taleski’s mother Miladinka Taleska and found Mrs Taleska’s application for registration as a carer was received by the Medicare office at 120 Collins Street Melbourne on 18 January 2006. Mr Taleski’s evidence was that this application was the uppermost document of approximately 31 pages he lodged on 18 January 2006. The 30-page MAT form and other benefit applications have not been located. Mr Bruton could find no trace of this documentation. This of course does not mean it was not lodged.
34. Medicare and The Royal Women’s Hospital have documented their procedures in what the Tribunal perceives to be a somewhat guarded manner. Despite queries directed to the individuals who appeared to be responsible for the actual processes, namely Ms McGorlick at the relevant Medicare office and Ms Farrell, Director of Maternity Services, at The Royal Women’s Hospital responses were received from Ms Smith, Executive Support Manager of Medicare Australia and Ms Kennedy, Corporate Counsel of The Royal Women’s Hospital. Neither of these persons appears to have firsthand knowledge of the processes of Medicare office at 120 Collins Street or the MAT form completion procedures at The Royal Women’s Hospital respectively.
35. The Tribunal Member having worked for some 39 years in Victorian public hospitals, though not the Royal Women’s Hospital, was very familiar with the provision of procedural manuals, care plans and legal requirements of documentation in all wards of the hospitals in which she had worked both as a trainee and consultant. The Tribunal was also aware that weekend staffing was often reduced and provided for by nursing agencies and administrative staff. The opportunity for administrative errors regrettably increased at weekends. Stephanie Taleski was born on a Saturday evening and she and her mother were discharged on the following Tuesday morning. The Taleski’s acknowledged that they received several small bags (like Show bags) of information; which Mrs Taleski in her post-partum state did not read.
36. While the Tribunal accepts Mr Taleski’s evidence as truthful, there is no documentary evidence to support the Applicant’s claim. The only evidence to support the Applicant’s claim is that Mrs Taleska’s application for registration as a carer, which Mr Taleski contends was filed with the MAT form, was received at the Medicare office on 18 January 2006. Based on the evidence before it, the Tribunal believes it is likely that the Medicare office made an administrative error in failing to pass on the MAT form to Centrelink. However, given the legislative requirements, the Tribunal has no discretion to grant the Applicant any relief. Therefore, the Tribunal has no alternative but to affirm the decision under review.
37. Having affirmed the decision, the Tribunal strongly recommends that consideration be given to an Act of Grace payment to the Applicant in the sum of $3000.
38. Act of Grace payments are authorised under s 33 of the Financial Management and Accountability Act 1997 where special circumstances exist and, as in this instance, where the particular circumstances of a case lead to the conclusion that there is a moral obligation on the Commonwealth to make a payment. (Social Security and Family Assistance Law, 2nd ed, Federation Press.)
39. In Secretary, Department of Social Security v Cooper (1990) 26 FCR 13, in a totally different factual situation, the Full Court of the Federal Court said:
…
The use of that section in this case, if it had turned out there was no other remedy, would not have resulted in the Commonwealth being out of pocket beyond the amount which the relevant legislation contemplates should be expended for the relief of the need which has given rise to Samantha Cooper's entitlement to an invalid pension…
While taken out of the context of the particular case, this decision is equally applicable to the Applicant’s claim.
40. The Tribunal commends Mr Pike for his efforts in seeking further information at the request of the Tribunal, his efforts exemplifying the concept of the Commonwealth as a model litigant.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Olympia Sarrinikolaou
ClerkDates of Hearing: 26 February 2007
Date of Decision: 28 June 2007
Advocate for the Applicant: Self-represented
Advocate for the Respondent: Mr M. Pike, Centrelink Legal Services Branch
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