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

[2008] AATA 551

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 551

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/3895

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PENNY TYNAN

Applicant

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

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date30 June 2008

PlaceCanberra

Decision The decision under review is affirmed.

...........signed..................................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - Maternity Payment - overseas adoption - claim out of time - difficulty accessing relevant information - injury associated with birth of the child - no grounds to extend claim period - residence in Australian embassy compound - claim not precluded because child did not arrive in Australia as part of the adoption process - claim not effective - decision affirmed

A New Tax System (Family Assistance) Act 1999 s 36

A new Tax System (Family Assistance) Administration Act 1999 ss 36, 39,

REASONS FOR DECISION

30 June 2008 Mr S. Webb, Member         

1.      Penny Tynan adopted an infant child in Cambodia.  At the time, she was employed as a consular official in the Australian Embassy in Phnom Penh, and remains so.  Ms Tynan applied for Maternity Payment but her claim was rejected by primary determination, on review by an authorised review officer and then by the Social Security Appeals Tribunal. 

2.      The following facts arise from the materials before me or are not contested. Ms Tynan’s adopted daughter, Pia (formerly know as Peouv Hieng), was born on 29 April 2005.[1]  She was severely burned in an acid attack soon thereafter and has required surgical and other medical treatment as a result.[2]  Ms Tynan says that she took Pia into her care in May 2006, residing in the Australian Embassy compound in Phnom Penh.  She gave evidence that attempted to ensure Pia was provided with appropriate medical treatment and care, and formally adopted her on 7 July 2006.[3] 

[1] T17 folio 94.

[2] T1 folios 1A and 1B; T12 folio 78.

[3] T18 folios 109-110.

3.      Ms Tynan lodged a claim for Maternity Payment with Medicare Australia on 26 February 2007.[4]  On 29 March 2007 her claim was rejected.[5]  On 16 April 2007 and 14 May 2007, the decision was affirmed on reconsideration and review.[6]  Ms Tynan lodged additional material and sought review by the SSAT.  On 19 July 2007 the SSAT decided to affirm the decision to reject her claim.[7]

[4] T18.

[5] T14.

[6] T9, T10 and T13.

[7] T2.

4.      The issue for determination is whether Ms Tynan is entitled to Maternity Payment.

5.      Ms Tynan asserts that she is entitled to the Payment.  Ms Tynan’s evidence is that she attempted to lodge a claim for Maternity Payment in January 2007 using a Medicare Australia website on the Internet.  She says that she made several attempts to lodge a claim, but without success.  She says that she sent an email to an address on the website, but received no response.  Subsequently, she printed a claim form from the website and sent it using the postal service.  In her submission, she should not be precluded from obtaining a Maternity Payment because of the difficulties attaching to the website or the postal services. 

6.      The eligibility requirements for Maternity Payment are set out in the A New Tax System (Family Assistance) Act 1999 (“the Assistance Act”) (s 36). Restrictions on claiming Maternity Payment are set out in the A New Tax System (Family Assistance) Administration Act 1999 (“the Administration Act”) (ss 36 and 39).

7.      In Ms Tynan’s submission, Pia was not medically fit to travel to Australia in the first two years of her life, and could not, therefore, comply with any requirement to arrive in Australia before she turned 2.  She relies on the evidence of Dr Jim Gollogly in that regard.[8]  Ms Tynan asserts that rejecting her claim for Maternity Payment on the basis that Pia did not arrive in Australia within the specified time is inhumane, unethical and inconsistent with Australia’s human rights policy.   For these reasons, Ms Tynan says that the decision to reject her claim should be set aside.

[8] T12 folio 78.

8.      Even though these are unusual and unfortunate circumstances, for reasons that follow, I do not agree.

9. As can be seen, by Ms Tynan’s own account the child was transferred into her care in May 2006 and the adoption was formalised on 7 July 2006. Under subs 39(2) and (3) of the Administration Act, to be effective a claim for Maternity Payment must be lodged no later than 26 weeks after ‘the time the child is entrusted to the care of the claimant’ (subp 39(2)(c) of the Administration Act – other subparagraphs of subs 39(2) are not applicable)). Thus in Ms Tynan’s case, the period of 26 weeks would commence on the date Pia was entrusted into her care. I will proceed on the basis that the date of formal adoption is the date on which Pia was formally entrusted into Ms Tynan’s care. Thus Ms Tynan had until 7 January 2007 in which to lodge a claim for Maternity Payment.

10.     However, Ms Tynan’s claim was lodged on 26 February 2007.  There is no evidence to support Ms Tynan’s assertion that she attempted to make a claim using a Medicare Australia website.  Even if I accept that she did, and I have no reason to doubt the veracity of her evidence, there is no evidence to confirm the date or dates on which those attempts were made.  On Ms Tynan’s evidence, she attempted to lodge her claim in January 2007 and ultimately printed off the application form for lodgement by post.  Ms Tynan signed the application form on 1 February 2007.[9] 

[9] T18 folio 104.

11.     Subsection 39(3) confers a limited discretion to extend the period in which a Maternity Payment may be lodged.  The discretion is only enlivened if the claimant was unable to make a claim in normal circumstances because of ‘severe illness associated with the birth of the child’.  While it can be accepted that Pia’s injuries may have been associated with her birth, there is no evidence that those injuries rendered Ms Tynan unable to make a claim for Maternity Payment.  The factors that Ms Tynan asserts delayed the lodgement of her claim for Maternity Payment are not sufficient to enliven the discretion to extend the claim lodgement period.  Thus, the discretion is not enlivened in this case and, even though it may appear harsh in the circumstances, the period in which Ms Tynan could lodge a claim for Maternity Payment cannot be extended.  I so find.

12. It follows that Ms Tynan’s claim is not an effective claim, and therefore, she is not entitled to Maternity Payment pursuant to subs 36(1) of the Administration Act. Thus, the decision under review must be affirmed.

13. It is not necessary to proceed further to consider other aspects of the case agitated before me. However, it is appropriate to make the following observations. As Ms Tynan was at all relevant times residing in the compound of the Australian Embassy in Phnom Penh, Pia did not travel to Australia as part of the adoption process and the two year rule set out in subp 36(5)(ba) of the Assistance Act does not apply. Thus, the fact that Pia has not departed from Cambodia would not be determinative of Ms Tynan’s eligibility for Maternity Payment. Whether an Australian embassy in a foreign state is within the meaning of ‘Australia’ for the purposes of the Assistance Act is a question that I do not need to decide for present purposes.

14.     The circumstances of this case are unusual and unfortunate.  One has sympathy for Pia’s condition.  Ms Tynan’s actions and efforts strike me as commendable.  I understand that the Respondent Secretary is considering an act of grace payment to Ms Tynan.  While that is a matter for the Secretary, as it appears to me, it may be justified in this case.

decision

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ...signed............................................
  Jane Gribble
  Associate

Date of Hearing  9 May 2008
Date of Decision  30 June 2008
Representative for the Applicant             Penny Tynan
Solicitor for the Respondent        Jillian Furner
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