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

[2010] AATA 991

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 991

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3981

GENERAL ADMINISTRATIVE DIVISION		)
Re		VMRL

Applicant

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

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date10 December 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Claim for maternity payment made more that 26 weeks after birth of child – Claim not effective and taken not to have been made – Claim for past period family tax benefit made outside of statutory time-frames - Claim not effective and taken not to have been made – Decisions affirmed.

Administrative Appeals Tribunal Act 1975 (Cth) s 34J
A New Tax System (Family Assistance) Act 1999 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 5, 7, 10, 13, 36, 38, 39, 41

REASONS FOR DECISION

10 December 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1.      The applicant’s three children were born on 11 August 2001 (N), 3 December 2002 (Y) and 2 February 2005 (E), respectively.  On 12 May 2010, the applicant lodged a claim for maternity payment in relation to E.  On 13 May 2010, she lodged past period claims for family tax benefit for her children for the financial years 2001/2, 2002/3, 2003/4, 2004/5, 2005/6 and 2006/7.  On 19 May 2010, a delegate of Centrelink determined that no effective claims were lodged by the applicant and that, therefore, the claims were taken not to have been made.  Those decisions were affirmed by an authorised review officer on 29 June 2010 and, in turn, by the Social Security Appeals Tribunal (“SSAT”) on 24 August 2010.  The matter came before the Tribunal and was determined in the absence of the parties without a formal hearing[1]. 

[1] See s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).

ISSUES AND SUBMISSIONS

2.      As at the time of E’s birth, maternity payment was a form of income support payable under the terms of A New Tax System Family Assistance Act 1999 (Cth) (“the Act”) and the requirements for an effective claim were provided for in A New Tax System Family Assistance (Administration) Act 1999 (Cth) (“the Administration Act”).  The claim had to be effective[2].  A restriction on claiming, set out in s 39(2) of Administration Act was that the claim for maternity payment was not effective unless it was made within 26 weeks of the birth of the child for which the claim was made.  An extension to this period was set out in s 39(3) of the Administration Act which reads:

Extension of 26 week period in subsection (2)

(3)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.

[2] See ss 36, 38 and 41 of the Administration Act.

3.      It is not in dispute that the applicant’s claim for maternity payment for E was made more than 26 weeks after her birth and, accordingly, the first issue for the Tribunal is whether an extension may be granted in the applicant’s situation such that her claim is effective. 

4. Family tax benefit is also payable in accordance with the Act and restrictions on making a claim are set out in s 10 of the Administration Act. Again, an effective claim is required[3].  It is not in dispute that the applicant’s claim for family tax benefit on 13 May 2010 was for past periods of payment.  Restrictions on claims for family tax benefit for a past period are set out in s 10 of the Administration Act which, in so far as relevant, reads:

Restrictions on claims for payment of family tax benefit for a past period

(1)..........

(2)       A claim for payment of family tax benefit for a past period is not effective if:

(a)       the period does not fall wholly within one income year; or

(b)the period does fall wholly within one income year but the claim is made after the end of the 2 income years immediately following that income year.

[3] See ss 5, 7 and 13 of the Administration Act.

5.      The second issue for the Tribunal is whether that restriction is applicable to the applicant’s claim for family tax benefit.

CONSIDERATION

6.      The applicant referred to financial hardship, scarcity of living space for her children and her unawareness of the time-frames for making her respective claims as her reasons for seeking review.  At the SSAT, she said that she and her husband had made a conscious decision not to make a claim because they did not wish to impose a burden on the taxpayer.  She also said that she was unaware of the time‑frames which applied to the making of claims. 

7.      In relation to maternity payment for E, I am satisfied that the claim was made more than 26 weeks after E’s birth.  The only basis for extending the time for a claim so as to make it effective is that there was severe illness associated with the birth of E.  There is no evidence that there was any such illness.  Under s 39(2) of the Administration Act, the applicant’s claim was not effective and is taken not to have been made[4].

[4] See s 41 of the Administration Act.

8.      In relation to the applicant’s past claims for family tax benefit, I am satisfied that the claim was made outside of the time-frames required by s 10(2) of the Administration Act.  Accordingly, the claim was ineffective and is taken not to have been made[5].

[5] See s 13 of the Administration Act.

DECISION

9.      The Tribunal affirms the decisions under review.

I certify that the preceding 9 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed: .................[Sgd]............................................................

Alex Seagar, Associate

Date of Hearing on the papers:           2 December 2010
Date of Decision:  10 December 2010