Waller and Secretary, Department of Family, Community Services and Indigenous Affairs
[2007] AATA 1902
•30 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1902
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600272
GENERAL ADMINISTRATIVE DIVISION ) Re SABRINA WALLER Applicant
And
SECRETARY, DEPARTMENT OF FAMILY, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S.E. Frost, Member Date30 October 2007
PlacePerth
Decision The Tribunal sets aside the part of the decision under review that rejected the Applicant’s claim for maternity allowance in relation to her child Brayden. The Tribunal decides instead that the Applicant made a claim for maternity allowance in relation to the birth of her child Brayden not later than 26 weeks after his birth.
The Tribunal affirms the part of the decision under review in relation to the Applicant’s claim for maternity allowance in respect of her child Jasminne.
For the purpose of assessing the amount of the Applicant’s entitlement, the Tribunal remits the matter to the Respondent.
.............(Sgd. S E Frost).....................
Member
CATCHWORDS
SOCIAL SECURITY – maternity allowance – claim that application lodged within 26 week period from child’s birth – claim that application forms were lost by Centrelink – decision under review set aside in part
LEGISLATION
A New Tax System (Family Assistance) Act 1999 – section 36
A New Tax System (Family Assistance) (Administration) Act 1999 – sections 36 and 39
CASE LAW
ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599
McDonald v Director-General of Social Security (1984) 1 FCR 354
REASONS FOR DECISION
30 October 2007 Mr S.E. Frost, Member introduction
1. This is an application by Mrs Sabrina Waller (“the Applicant”) for review of a decision made by Centrelink on 3 May 2006 to reject Mrs Waller’s claims for maternity allowance, because the claims were lodged more than 26 weeks after the children were born. This decision was affirmed by the Social Security Appeals Tribunal (“SSAT”) on 17 August 2006.
2. A hearing was held on 12 July 2007. At the end of the hearing a timetable was agreed for the lodgement of further submissions. The final submissions were received on 11 October 2007.
background
3. Mrs Waller’s second child is a daughter, Jasminne, who was born on 2 October 2001. Her son Brayden is her third child, born on 8 April 2004.
4. Mrs Waller says that within about two weeks of the birth of each child, she hand delivered claim forms to the Centrelink office in the Perth suburb of Morley.
5. Centrelink, on the other hand, says that it has no record of either claim. The only claims that it has been able to locate are those dated 18 April 2006 in respect of each of the children. Centrelink disallowed Mrs Waller’s claims for maternity allowance that were lodged in April 2006, because the claim forms were lodged more than 26 weeks after the dates on which the children were born. That decision was affirmed by an Authorised Review Officer (“ARO”) on 12 May 2006, and most recently by the SSAT on 17 August 2006.
relevant legislation
6. When a child is born, either of the parents is eligible to receive maternity allowance, provided that they meet the eligibility criteria outlined in section 36(2) of the A New Tax System (Family Assistance) Act 1999 (“the Act”).
7. That eligibility turns into an entitlement once the parent makes a claim for the allowance pursuant to section 36 of the A New Tax System (Family Assistance) (Administration) Act 1999 (“the Administration Act”). Section 39(2) of the Administration Act relevantly provides that the period in which a claim for maternity allowance can be made is generally within 26 weeks of the child’s birth.
8. Mrs Waller is an eligible parent pursuant to section 36(2) of the Act. In respect of both Jasminne and Brayden, she also says that she is entitled to the payment. This is because, she says, in each case she made a claim for the allowance, as required by section 36 of the Administration Act, within 26 weeks of the birth pursuant to section 39(2) of the Administration Act. Centrelink contends, however, that whatever claims Mrs Waller made were outside the 26 week period, and therefore were not effective claims.
9. The simple issue for me to determine is whether Mrs Waller made a claim for maternity allowance, within time, in relation to each of these two children.
the evidence
10. Mrs Waller gave oral evidence to the Tribunal. She recalled the visit that she made to the Morley Centrelink office shortly after Brayden’s birth. She recalled having been driven there by her mother, Cheryl Jones. She recalled that Mrs Jones dropped her off outside the office so that she could go inside to lodge the claim form.
11. Mrs Jones corroborated this version of events. On the day before the hearing she swore an affidavit to the effect that she had been with her daughter when she went to the Morley Centrelink office. In oral evidence she said that she had been left with the baby – Brayden – in the car, and that after a while he had started to get agitated and cry. Whilst she could not remember the exact date that this occurred, she was able to say, after reference to her passport, that it must have been between 4 March 2004 (when she arrived in Australia from the USA, in preparation for Brayden’s birth) and 26 April 2004 (when she returned to the USA). As she was resident in the US at the time, she was able to say with some certainty that the visit to the Morley Centrelink office with her daughter, with the new born baby in the car, must have occurred during that time frame. This is consistent with the claim by Mrs Waller that she had attended the Centrelink office within about two weeks of Brayden’s birth.
12. The SSAT was not persuaded that Mrs Waller’s recollection of having lodged the claim forms could be relied upon. However, the SSAT did not have the supporting evidence (in respect of the claim form for Brayden) from Mrs Jones. I have that supporting evidence, and I have to decide whether the evidence of Mrs Waller and Mrs Jones is truthful, or an elaborate concoction to support an unmeritorious case.
the secretary’s contentions
13. There are four reasons why the Secretary says I should reject Mrs Waller’s assertion that she lodged her claim forms within time.
14. The first reason is that her assertion is unsupported except by Mrs Jones, whose evidence, coming at such a late stage, should be regarded with suspicion, if not outright scepticism.
15. It is true that Mrs Jones’ affidavit was sworn almost at the very last minute. However, Mrs Jones was subjected to extensive questioning by both the Secretary’s representative, and also by me. Her recollection struck me as reliable. I am satisfied that she is a truthful witness. I am also satisfied that Mrs Waller’s evidence was truthful.
16. The second reason is that, despite the most extensive search of Centrelink’s records, no claim forms could be found except those that were lodged in April 2006.
17. Normally this would weigh very heavily in the Secretary’s favour. However, in this case there is evidence of poor record-keeping in relation to Mrs Waller’s affairs. For some unexplained reason, Centrelink had two separate files for her, and it was only through information that Mrs Waller provided to Centrelink, that Centrelink identified the existence of duplicate files. It did not identify the duplication on its own initiative. I therefore cannot exclude the possibility that the claim forms exist in some as yet undiscovered corner of Centrelink’s file room.
18. The third reason is the Secretary’s suggestion that it is inherently improbable that Centrelink should have mislaid (on Mrs Waller’s account) not one, but two, claim forms. However, given the irregularities in relation to Mrs Waller’s records, as just mentioned, this scenario is not as improbable as it first seems.
19. The final reason revolves around the action taken by Mrs Waller, and her husband, to follow up the processing of the claims (if, indeed, the claims had been lodged). The Secretary found it difficult to accept that, in respect of Brayden’s birth, Mrs Waller would have waited a full two years before asking where her money was. This requires some elaboration.
20. Mrs Waller’s evidence was that, in respect of Jasminne’s birth, she had not followed up the claim with Centrelink until she realised (following the receipt of her income tax assessment for the 2002 income year) that she had not been credited with the maternity allowance as part of the tax assessment process. She had understood – mistakenly – that maternity allowance is paid through the tax system. In fact, it is paid directly to the claimant from Centrelink.
21. Nevertheless, labouring under that misapprehension, she was only driven to follow it up with Centrelink once she received her tax assessment. When she did make enquiries with Centrelink, she was told that they had no record of her having lodged a claim.
22. The Secretary therefore submitted that against the background of an apparently lost claim form, it is more likely that Mrs Waller would have been extremely diligent in following up with Centrelink the claim arising from Brayden’s birth. It is true that the follow-up was not made for a full two years after Brayden’s birth. I simply note that a young couple, with three children and a fledgling business to look after, will have things on their mind other than how Centrelink is progressing with the determination of a maternity allowance claim. It is simply not at the forefront of a new parent’s mind when there are so many other things of much greater significance that need to be attended to.
conclusion
23. The general principle to be applied by the Tribunal in resolving factual uncertainty is outlined in ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599 (“Nikolovski”) at 601:
This analysis rests on the proposition that a decision-maker, and a tribunal standing in the shoes of a decision-maker, should not exercise a power to make a decision unless it is satisfied that the facts warrant the exercise of the power. If the decision-maker or the tribunal cannot be satisfied on the balance of probabilities that facts exist which warrant an exercise of the power, then the decision-maker or the tribunal should not exercise the power. This approach accords with the view stated by the AAT in Re Twyman and Commonwealth of Australia (1987) 13 ALD 402: “the status quo must remain unchanged unless the evidence establishes that it should be changed” (citing McDonald v Director-General of Social Security (1984) 1 FCR 354).
24. I am satisfied on the basis of the evidence of both Mrs Waller and Mrs Jones (both of whom withstood extensive cross-examination) that Mrs Waller did indeed claim maternity allowance for Brayden within 26 weeks of his birth as required by section 39(2) of the Administration Act. Accepting both witnesses as truthful, I can find no rational explanation of their version of events other than that Mrs Waller did, in fact, lodge a claim form within a very short time after Brayden’s birth. For this reason, I find that Mrs Waller is entitled to receive maternity allowance in respect of Brayden.
25. However, there does remain some factual uncertainty in relation to Mrs Waller’s claim for maternity allowance in respect of Jasminne. In the absence of any corroborating evidence (as was present in relation to Brayden’s claim), I cannot be satisfied on the balance of probabilities that the original decision should be changed. For this reason, I find that Mrs Waller is not entitled to receive maternity allowance in respect of Jasminne.
decision
26. Accordingly, I set aside part of the decision under review that rejected Mrs Waller’s claim for maternity allowance in relation to the birth of Brayden. In its place, I decide that Mrs Waller made a claim for maternity allowance in relation to the birth of Brayden not later than 26 weeks after his birth.
27. I affirm the part of the decision under review in relation to Mrs Waller’s claim for maternity allowance in respect of Jasminne. For the purpose of assessing the amount of Mrs Waller’s entitlement, I remit the matter to the Respondent.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. E. Frost, Member
Signed: ...............(Sgd. R Riberi)...................................
AssociateDate of Hearing 12 July 2007
Date of lodgement of final submissions 11 October 2007
Date of Decision 30 October 2007
Representative for the Applicant Self-representedSolicitor for the Respondent Mr Quincy Bastian, Centrelink Legal Services Branch
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