Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 75
•26 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 75
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/388
GENERAL ADMINISTRATIVE DIVISION ) Re AMANDA TAYLOR Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S. Webb, Member Date26 February 2007
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that it is reasonable to extend the period for lodgement of Mrs Taylor's claim for maternity payment to 15 June 2005.
........(Signed)..............................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - maternity payment - claim out of time - limited discretion to extend time – severe illness associated with birth of child - unable to lodge claim - decision set aside
A New Tax System (Family Assistance) Act 1999 s 36
A New Tax System (Family Assistance) (Administration) Act 1999 ss 36, 39, 97
Re Hammoud and Secretary, Department of Family and Community Services [2006] AATA 174
Repatriation Commission v Hall (1988) 8 AAR 354
Re Stubbs and Secretary, Department of Family and Community Services [2003] AATA 729
Re McMaster and Secretary, Department of Family and Community Services [2002] AATA 955
REASONS FOR DECISION
26 February 2007 Mr S. Webb, Member 1. Amanda Taylor claimed maternity payment after the birth of her son Barton. The claim was rejected because it was out of time. Mrs Taylor pursued her rights of review and the matter now arises for determination by this Tribunal.
2. The issue for determination is whether Mrs Taylor's claim was effective. As I understand it there is no issue about her eligibility for maternity payment pursuant to section 36 of the A New Tax System (Family Assistance) Act 1999. On the evidence before me that is plainly correct and I so find.
3. The Respondent Secretary asserts that Mrs Taylor did not suffer a severe illness that was associated with the birth of her son that rendered her unable to lodge her claim for maternity payment within the prescribed time.
4. As will appear I do not agree.
5. Under section 36 of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Act”) the person is only entitled to be paid maternity payment if they have made an effective claim. Subsection 39(2) of that Act provides, relevantly, that a claim is not effective if it is made later than 26 weeks after the birth of the child. However, subsection 39(3) provides a limited discretion in the Secretary to extend the period of 26 weeks if he or she 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 …”.
6. The term ‘severe illness’ is not defined in the Act. The meaning of the term has been considered in previous cases in the Tribunal[1]. Considering the meaning of ‘severe’ in the Macquarie Dictionary and the Oxford English Dictionary it connotes something that is harsh, serious or grave. I am mindful that the word ‘severe’ is used in other statutory contexts, ‘severe financial hardship’ at section 97 of the Act for example, and the word should be construed as far as possible to give the same meaning[2]. ‘Severe financial hardship’ has been construed to mean something less than destitution but more than merely straitened financial circumstances, importing a need for a degree of financial suffering that is severe or extreme in nature[3]. Thus a ‘severe illness’ is one that is not slight or moderate, but is one that is harsh, serious, grave or extreme.
[1] see Re Hammoud and Secretary, Department of Family and Community Services [2006] AATA 174, for example
[2] Statutory Interpretation in Australia, 5th Edition, D. Pearce and R. Geddes at paragraph 4.4
[3] see Repatriation Commission v Hall (1988) 8 AAR 354 at 361 concerning the same term used in the Social Security Act 1991, and Re Stubbs and Secretary, Department of Family and Community Services [2003] AATA 729
7. The word ‘illness’ means a state of bad health or sickness. Plainly enough the severity of illness is a spectrum. An illness may be severe without necessarily being very severe or extremely severe, to the extent that it is life-threatening for example, but may be fairly severe or moderately severe. The severity of illness is a matter of degree. It is a question of medical fact that must be assessed in the particular circumstances. It is not something to be assessed by a fixed objective standard but rather must be assessed having regard to the claimant’s particular circumstances. The greater the severity, the more grave the illness and the greater the difficulty associated with it. Cancer is a severe illness, but its severity in the particular circumstances may vary from time to time. The measure of difficulty specified in the limited terms of the discretion is that the person is unable to lodge a claim because of the severe illness.
8. The evidence is that Mrs Taylor was suffering from depression associated with the birth of her son Barton in November 2004. By her own account she “soldiered on” in the months following his birth and did not discuss her psychological difficulties and depression with anybody other than her general practitioner, Dr Rashmi Sharma. Her evidence is that after the birth of her son she “went downhill fairly quickly”, but proudly thought she could cope. She did not want to acknowledge the difficulties she was experiencing because she did not want to be seen as a failure as a mother. Her evidence is that her condition deteriorated to the point that she felt suicidal and she was frightened that she may harm her children, in consequence of which she sought medical help in the latter part of 2005. There are two reports by Dr Sharma in evidence before me. In the first, dated 9 May 2006[4], Dr Sharma listed the stressors that she considered relevant to Mrs Taylor's condition. These included the birth of her fourth child in November 2004. Dr Sharma reported that:
“As the result of all this pressure it is hardly surprising that Mrs Taylor developed depression and anxiety and this was mentioned during consultations within the six months following her son's birth. Mrs Taylor managed to cope with this without any treatment but in January of this year she commenced medication for depression and is currently enrolled with the psychologist for treatment of her symptoms.
Mrs Taylor's medical condition and depression was present following her son's birth (but she probably did not have the time or energy to address this problem) and as a result she may not have been able to submit her claim of the baby bonus in time.”
[4] Exhibit A1
9. On 14 February 2007 Dr Sharma reported that Mrs Taylor suffered postnatal depression that was directly related to the birth of her fourth child[5]. Dr Tania Lioulios, Mrs Taylor's treating neuropsychologist since February 2006, reported that Mrs Taylor has been “… suffering from long term depression fairly severe since at least the birth of her son Barton in November 2004 …”[6].
[5] Exhibit A3
[6] Exhibit A2
10. I accept the evidence of Dr Sharma and Dr Lioulios, and find that Mrs Taylor was suffering from depression, in all likelihood postnatal depression, that was in Dr Lioulios’ assessment fairly severe following the birth of her son in November 2004. I note that Dr Lioulios has been treating Mrs Taylor only since February 2006. Nevertheless Dr Lioulios’ assessment of the severity of illness is not the only evidence on this point. There is the evidence that Mrs Taylor gave concerning her difficulty coping, her tiredness, her difficulty concentrating and her forgetfulness and the level of her distress and anxiety in the difficult circumstances in which she found herself following her son’s birth. I am satisfied that Mrs Taylor’s recollections about her psychological state are consistent with Dr Lioulios’ assessment of the severity of her depression at that time. On that evidence I accept Dr Lioulios’ assessment and find that Mrs Taylor’s depression in 2004 is within the meaning of ‘severe illness’.
11. Furthermore, I accept the evidence of Dr Sharmi and Dr Lioulios that Mrs Taylor’s depression was, in part at least, associated with her son's birth. I so find. Both doctors gave a diagnosis of postnatal depression following the birth of her son in 2004, noting the likelihood that she had previously suffered depression following the loss of her family home in the January 2003 bushfires.
12. Did Mrs Taylor’s illness render her unable to lodge her claim for maternity payment within the statutory 26 week period? On balance I am satisfied that it did. Considering Mrs Taylor’s evidence, it is clear that her illness did not render her physically unable to lodge a claim for maternity payment within the 26 week period. Mrs Taylor accepted that she knew the claim had to be lodged within a certain time. She completed and signed the claim form on 2 March 2005[7], within the prescribed time. I accept her evidence that she attempted to lodge the claim form for maternity payment at the office of the Registrar of Births, Deaths and Marriages in Canberra on or about the day she signed the form, but was told that she should lodge it with Centrelink. She says that she left with the intention of doing so on her way home but Barton started screaming and she decided to go home and feed him, and to lodge the form on another day. However, at that time the family was in the process of moving house and she put the claim to one side. Mrs Taylor says that she was distracted by other events and stresses associated with moving house, and supporting her children through that upheaval, and put the claim out of her mind. She says that she forgot about the claim and did not think about it again until the claim form was unpacked from a box sometime later, whereupon she promptly lodged the claim. Mrs Taylor asserts that the effect of the postnatal depression, in the chaotic and stressful circumstances, caused her to fail to lodge the claim form within the prescribed time. She says that previously she was not forgetful but now has to write everything down.
[7] T18
13. Dr Lioulios reported that many of Mrs Taylor's tasks and responsibilities were not addressed until later than necessary as a result of her depression/anxiety condition and situational stressors[8]. Neither Dr Sharmi nor Dr Lioulios were called to give evidence. No expert evidence was led concerning the symptoms of postnatal depression. Nevertheless, I accept that the symptoms of depression may include altered mood, anxiety, loss of interest in social activities, feelings of hopelessness, loss of energy or fatigue and diminished ability to think or concentrate[9]. Thus the medical diagnosis of postnatal depression in the period following November 2004 implies that Mrs Taylor was suffering some or all of these symptoms. On that basis I have no reason to reject her evidence that she was tired, easily confused and forgetful at that time as a result of her illness. Was Mrs Taylor prevented from lodging the claim within the prescribed time as a result of the symptoms of the illness she was suffering at the time or did she simply forget about it? The evidence of Dr Sharmi and Dr Lioulios suggests that her illness was the operative cause, at least in part. That being so, I accept that it is likely that her illness was an operative factor that rendered Mrs Taylor unable to lodge her claim for maternity payment within the prescribed time. Simply put, Mrs Taylor was not able to lodge her maternity payment claim form within the prescribed time because she forgot about it for a period, even though she had previously signed and attempted to lodge the form. She suffered problems with her memory as a result of her depressive illness, which was associated with the birth of her son. Thus her illness was, at least in part, the reason she forgot about lodging the form as a result of which she was unable to lodge it within the prescribed time.
[8] Exhibit A2
[9] See, Black’s Medical Dictionary, 40th Edition, 2002 and Taber’s Cyclopedic Medical Dictionary, 18th Edition, 1997
14. Plainly enough, there were other factors that contributed to the delay. Mrs Taylor and her family were moving house at the time. In all likelihood, the claim form was placed in a box that was not unpacked until sometime later. The evidence of Dr Sharmi is plain enough that Mrs Taylor was distracted by other events and stresses. It can be said that these factors also contributed to the delay. However the test to be applied is whether Mrs Taylor was rendered unable to lodge the claim by her illness. It is not necessary that the illness was the only operative cause of her inability to lodge the claim within the prescribed time. The legislation, which is beneficial, does not require a sole cause test to be applied. The Secretary, and in those shoes this Tribunal, must be satisfied that the inability to lodge the claim is ‘because of’ the illness. In other words a causal relationship must exist between the inability and the illness before the discretionary power is enlivened. That relationship must be established as a matter of probability on the evidence. Doing the best with the available evidence, I am reasonably satisfied that the requisite causal relationship is established as a matter a probability in this case.
15. The Respondent Secretary drew my attention to the case of Re McMaster and Secretary, Department of Family and Community Services [2002] AATA 955 which, it was said, was on all fours with this case. I do not agree. In Ms McMaster’s case she was given wrong information about claiming maternity payment by Centrelink and lodged a claim when claiming a family tax benefit lump sum payment at the end of the year. It appears that there was some evidence that she may have suffered from postnatal depression, but received no treatment for that condition. It is reasonable to assume that there was no evidence before the Tribunal that Ms McMaster’s post natal depression was severe. Thus McMaster’s case is not on all fours with this case and is distinguished on its facts. Mrs Taylor was not given wrong information that caused her to delay launching her claim for maternity payment and there is evidence that she suffered from a severe illness in the months following the birth of her son for which, subsequently, she sought and obtained treatment.
16. Having considered all the evidence and the applicable caselaw I am satisfied that it is reasonable in the circumstances to extend the 26 week period in which Mrs Taylor was required to lodge her claim for maternity payment to 15 June 2005, the date her claim was lodged. Her case is within the terms of the limited discretion and it is reasonable in all of the circumstances to do so. It follows that her claim is an effective claim and she is entitled to be paid maternity payment. The decision under review will be set aside and that matter remitted to the Respondent Secretary to calculate the amount of the payment.
17. The decision under review is set aside and in substitution thereof the Tribunal decides that it is reasonable to extend the period for lodgement of Mrs Taylor's claim for maternity payment to 15 June 2005.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .....[Peter Strauch]..............................................
AssociateDate of Hearing 15 February 2007
Date of Decision 26 February 2007
Representative for the Applicant Self-represented
Solicitor for the Respondent Jillian Furner
Centrelink, Legal Services Branch
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