Thompson; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2008] AATA 1131
•18 December 2008
ADMINISTRATIVE APPEALS TRIBUNAL
No: 2008/1765
General Administrative Division
Re: Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs
Applicant
And: Lyndal Thompson
Respondent
ORDER TO AMEND WRITTEN DECISION
TRIBUNAL: Ms N Bell, Senior Member
DATE: 18 December 2008
PLACE: Sydney
WHEREAS:
The Tribunal published a written decision in this matter, dated 18 December 2008.
It has come to the Tribunal’s attention that there was an error of the kind anticipated by paragraph 43AA(3)(b) of the Administrative Appeals Tribunal Act 1975 (the Act) in the text of the decision.
The Tribunal wishes to amend the written decision 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 Act.
THE TRIBUNAL THEREFORE ORDERS that the text of the decision as it currently appears on the cover sheet next to the heading “Decision” and in paragraph 11 should read as follows:
The Tribunal sets aside the decision under review and instead decides that Mrs Thompson is eligible to be paid Baby Bonus and Maternity Immunisation Allowance, but is not eligible to be paid Family Tax Benefit.
.............................................sgd......................
Ms N Bell, Senior MemberAdministrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1131
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1765
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
LYNDAL THOMPSON
Respondent
DECISION
Tribunal MS N BELL, Senior Member Date18 December 2008
PlaceSydney
Decision The decision under review is affirmed.
....................sgd..........................
Ms N Bell, Senior Member
CATCHWORDS
Family Tax Benefit Child – Stillborn Child – Maternity Payment (Baby Bonus) – Maternity Immunisation Allowance – Bereavement Payment – Decision under review Affirmed.
A New Tax System (Family Assistance) Act 1999
Acts Interpretations Act 1901
Mead and Secretary, Department of Family and Community Services [2003] AATA 584
REASONS FOR DECISION
18 December 2008 Ms N BELL, Senior Member
1. Mrs Lyndal-Joy Thompson gave birth to her son, Marcus, on 17 November 2006. Tragically, Marcus was stillborn. Mrs Thompson made a claim for bereavement payment and it was rejected by Centrelink. That rejection was set aside by the Social Security Appeals Tribunal (SSAT) and now the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs seeks review of the SSAT’s decision.
2. Bereavement payment comprises three components: Baby Bonus, Maternity Immunisation Allowance and Family Tax Benefit (FTB). The Secretary contends that while Mrs Thompson is eligible to receive baby bonus and maternity immunisation allowance, she is not eligible to receive FTB. The basis for this contention is that, in order for FTB to be payable, a child must be an “FTB Child” within the meaning of section 22 of the A New Tax System (Family Assistance) Act 1999 (the Act) and Marcus, as a stillborn child, was not an FTB child.
3. The term “FTB Child” is defined in subsection 22(2) of the Act which provides, most relevantly to Marcus:
Individual aged under 18
22 (2) The individual is an FTB child of the adult if:
(a) the individual is aged under 18; and
(b)the adult is legally responsible (whether alone or jointly with someone else) for the day‑to‑day care, welfare and development of the individual; and
(c) the individual is in the adult’s care; and
(d)the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.
4. Mrs Thompson submitted that Marcus satisfied each of the requirements of section 22(2) of the Act as follows:
· An individual under the age of 18 years – all stillborn children are under 18;
· The adult is legally responsible for day to day care – had Marcus lived, Mrs Thompson would be responsible for him; in fact, she was responsible for overseeing funeral arrangements and the proper care of his body and burial or cremation; there is also the care a pregnant woman takes to ensure the baby she carries remains healthy; this requirement goes more to legal responsibility and the identification of the responsible person than it does to establishing eligibility based on whether the child is living or deceased;
· The individual is in the adult’s care – had Marcus lived, he would be in Mrs Thompson’s care; again, this goes more to the question of permanence of the presence of the child with the adult rather than eligibility based on whether the child is living or deceased; and
· The individual is an Australian resident – Mrs Thompson and Marcus’ father are Australian residents.
5. While I appreciate Mrs Thompson’s perspective, on the face of it, section 22 applies to a living child. The use of the word “individual” (defined in paragraph 22(1)(aa) of the Acts Interpretations Act 1901 as referring to a natural person), the use of the term “resident” which denotes a living person, and the use of the present tense throughout the section all suggest a living child. It is noteworthy that section 31 of the Act makes specific provision for the continuation of payment of FTB after the death of a child.
6. In addition, I note that subsections 36(4) and 39(3) of the Act specifically provide that baby bonus and maternity immunisation allowance, respectively, are payable with respect to a stillborn child. There is no similar specific provision in relation to FTB. This suggests that the intended meaning of subsection 22(2) of the Act is that a stillborn child is not an FTB child and hence there was a need to make specific provision for stillborn children in relation to maternity immunisation allowance and baby bonus. The absence of specific provision for stillborn children in relation to FTB points to the absence of intention to provide for FTB in the case of a stillborn child.
7. The policy expressed in the Department’s Family Assistance Guide (chapter 2.1.1.10) lends support to this view by stating:
“A stillborn child cannot be an FTB child, however baby bonus and MIA can be paid for a stillborn child.”
8. I also note the Tribunal’s decision in Mead and Secretary, Department of Family and Community Services [2003] AATA 584 in which the Tribunal held that a stillborn child could not satisfy the requirements in subsection 22(2) of the Act and was therefore not an FTB child.
9. I can only imagine the emotional pain of bearing a stillborn child and I recognise a parent’s legitimate need to have the birth of her child properly and fully acknowledged. I appreciate that the distinction made in the legislation between a live baby, even if the baby dies within minutes of birth, and a stillborn baby can serve only to exacerbate and degrade the grief of a parent of a stillborn baby. I understand that Mrs Thompson’s concern is not about the payment of money, but, rather, about recognition of the extent of the bereavement suffered by the parent of a stillborn child. To have that bereavement signalled as somehow less than that of any other grieving parent must be an intolerable addition to a parent’s pain.
10. However, I must apply the law, properly interpreted, to the circumstances of this case. As the legislation stands, a stillborn child is not an FTB child within the meaning of the Act. It follows that FTB is not payable in respect of a stillborn child.
decision
11. The decision under review is affirmed.
I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member
Signed: .....................................................................................
Associate: Felicia DanieleDate/s of Hearing 1 October 2008
Date of Decision 18 December 2008
Solicitor for the Applicant Ms Raewyn Harlock, Legal Services and Procurement Branch
Solicitor for the Respondent Self-represented
0
1
0