Vikas Kataria and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 236
•16 April 2013
[2013] AATA 236
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3553
Re
Vikas Kataria
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Mark Hyman, Member
Date 16 April 2013 Place Canberra The provisions governing the baby bonus require that a person claim the entitlement, as an individual, and, in normal circumstances within 52 weeks of the birth of the child. The applicant would have been entitled, but failed to submit an application within the specified period. No exceptions apply. Decision under review affirmed.
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Mark Hyman, Member
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances ‒ baby bonus – application more than 52 weeks after birth of child – application not effective ‒ no applicable exception – decision under review affirmed
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth), ss 22, 36
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), ss 36, 37, 38, 39, 41
Administrative Appeals Tribunal Act 1975 (Cth), s 37Cases
Re Amos and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 285
Re Lucev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 855REASONS FOR DECISION
Mark Hyman, Member
16 April 2013
The applicant, Mr Vikas Kataria, and his wife, Ms Priyanka Chhabra had a baby girl, Syna, who was born on 15 January 2011. Ms Chhabra applied for the baby bonus and other benefits on 22 March 2011, but her claim was rejected because she did not meet the residency requirements.
On 14 February 2012, Mr Kataria applied for the baby bonus. On 3 May 2012 Centrelink rejected his claim because Mr Kataria applied for the benefit more than twelve months after the birth of Syna. On 29 May a Centrelink Authorised Review Officer (ARO) affirmed Centrelink’s decision and on 12 July 2012 the Social Security Appeals Tribunal (SSAT) affirmed the ARO’s decision. Mr Kataria has sought review of the SSAT’s decision.
Issues
The issue before me is whether Mr Kataria should receive the baby bonus for the birth of Syna.
The hearing and the evidence
A hearing was held on 14 February 2012. The applicant attended in person and gave oral evidence. The respondent was represented by Mrs Susan Mantaring, a Centrelink advocate. Both applicant and respondent made oral argument.
Evidence before me comprised the documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T-documents and supplementary T-documents). The respondent also provided a written submission.
The facts
The facts of the matter are straightforward and not in dispute. Syna was born on 15 January 2011. Ms Chhabra applied for the baby bonus, on 22 March 2011. This application was rejected by Centrelink on 12 April 2011 because Ms Chhabra did not meet the residency requirements under the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act). As the other parent, Mr Kataria submitted an application for baby bonus on 14 February 2012, but this was rejected by Centrelink on 3 May 2012 because the application had been submitted more than 52 weeks after Syna’s birth. That decision was reviewed by a Centrelink ARO and the SSAT, as noted above, and in each case the decision was affirmed.
The statutory context
The baby bonus is established by the Family Assistance Act. The operation of the baby bonus is also affected by A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act).
Baby bonus is tied to the family tax benefit (FTB), and to the concept of an ‘FTB child’. Under section 22 of the Family Assistance Act, an FTB child includes a child under 16 years of age who is the legal responsibility of the relevant adult. Section 36 of the Act sets out when a person is eligible for the baby bonus. For present purposes it is sufficient to note that a person is eligible for the baby bonus if he or she is a biological parent of an FTB child, is caring for the child either alone or as a member of a couple within the first 26 weeks of the birth and is eligible for family tax benefit within those 26 weeks.
The Administration Act sets out the requirements for making claims for baby bonus and their determination. Section 36 states that a person can only become entitled to baby bonus by making a claim, and section 37 states that a claim may only be made by an individual. Section 38 sets out how a claim may be made and provides that a claim is not effective unless certain information accompanies the claim. Section 39 establishes a number of restrictions on claims. Among them is subsection 39(2) which provides that a claim made more than 52 weeks after the birth of the child is not effective. Subsection 39(3) establishes an exception to the 52-week period for making an application: the Secretary may extend that period where there is severe illness associated with the birth of the child. Section 41 and succeeding sections set out how a claim is determined. In particular, subsection 41(1) states that an effective claim must be determined in accordance with the section and those succeeding it; if a claim is not effective, it is taken not to have been made.
The applicant’s argument
Mr Kataria made a number of arguments in support of his claim to set aside the SSAT’s decision and receive the baby bonus. He submitted that the application made by Ms Chhabra and that made subsequently by himself should be regarded as a continuing single claim, which was begun within the time specified by the Act. Alternatively, or as part of the same argument, he submitted that the application should be regarded as a ‘family application’.
Mr Kataria further argued that when Ms Chhabra’s claim was rejected, the covering letter did not explain that he could apply in his name for the baby bonus. As a result he was unaware of the opportunity to claim the benefit, and once he became aware of it, the twelve months had elapsed. By the time his own claim was rejected it was too late to seek review of the ruling on Ms Chhabra’s claim.
At the heart of his argument, it appears that Mr Kataria wishes the legislation providing for the baby bonus to be administered in what might seem a ‘common sense’ way. He said that when he was before the SSAT they had ‘thrown the law book’ at him. Mr Kataria’s asked that the legislation be applied flexibly and that he not be denied a benefit to which he had a clear entitlement simply because of a technicality over the timing of his application.
The respondent’s argument
In response to those arguments, Mrs Mantaring pointed out that the Family Assistance Act and the Administration Act make provisions for individuals, not families, to claim and receive benefits. She also noted that the Act does not provide for ‘continuing’ applications. The documentation clearly shows that Centrelink provided relevant information regarding an application for baby bonus (among other potential benefits) on 22 March 2011. The record of the exchange with Ms Chhabra notes that advice was given that her partner should test his eligibility for family tax benefit and baby bonus, as his visa subclass was different from hers (ST2 folio 134, 22 March 2011).
CONSIDERATION
The operation of the Family Assistance and Administration Acts is especially strict and clear. Mr Kataria did not have an automatic entitlement to baby bonus; rather, he could only secure that entitlement by making a claim (Administration Act, section 36). He was obliged to make that claim as an individual, not on behalf of himself and his partner as a family (section 37). He was obliged to make the claim within 52 weeks of the birth (section 39); if he did not, the claim was not effective, and regarded as not having been made (section 41(1)).
There is little discretion available to the decision-maker to soften the rigours of the law. Exceptions are provided within section 39 – for example subsection 39(3) provides that the Secretary may extend the 52-week application period because of severe illness associated with the birth of the child, but I have no evidence before me to support the application of that exception.
Nor does the case law on these provisions offer any comfort to Mr Kataria. In cases such as Re Amos and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 285 and Re Lucev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 855 claimants in similar circumstances sought review of decisions to deny entitlement to the baby bonus, without success.
Mr Kataria feels clearly aggrieved that the advice from Centrelink that Ms Chhabra’s application had been denied did not alert him more clearly to the opportunity of applying for the baby bonus in his own right as a parent. Any failures or shortcomings in that regard, however, do not cast the decision under review into doubt: the obligation to claim the baby bonus lies squarely with the claimant, through section 36 of the Administration Act. In any case, I am satisfied that the weight of the evidence is that Centrelink alerted Ms Chhabra, at the time, to the possibility of her partner making a separate application.
The original Centrelink decision to reject Ms Chhabra’s application is not part of the decision presently under review, and I have no jurisdiction with regard to it.
The effect of these considerations is that Mr Kataria is not entitled to the baby bonus. When Mr Kataria asks that the law be applied with common sense, or with flexibility and understanding, he is – in this instance – asking for a departure from a fundamental principle of Australian governance. The phrase ‘rule of law’ is used to mean many different things, but one of its core meanings is that the law applies to everyone and that no-one is above the law. In this case, all those involved in the chain of decisions – namely Mr Kataria, Centrelink staff, the ARO, the SSAT and the Tribunal – are bound by the law and must follow it. If the law provides some discretion to allow for individual circumstances, then it may be administered flexibly. Where it does not, as here, I am obliged to apply it with the firmness that the legislature has chosen in drafting it.
DECISION
The decision under review is affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member ................................[sgd]...................................
Associate
Dated 16 April 2013
Date of hearing 14 February 2013 Applicant In person Advocate for the Respondent Mrs Susan Mantaring Solicitors for the Respondent Department of Human Services, Program Litigation and Review Branch
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