[2014] AATA 284 

Division	GENERAL ADMINISTRATIVE DIVISION	
File Number	2013/3982	
Re	Bruce Adriaans	
	APPLICANT	
And	Secretary, Department of Social Services	
	RESPONDENT	
Decision

Tribunal	Mr C Ermert, Member
	
Date	9 May 2014	
Place	Melbourne	
The Tribunal affirms the decision under review.

.........[sgd]...............................................................
Mr C Ermert, Member

SOCIAL SECURITY – Baby Bonus – taxable income of applicant and partner – claim within 52 week period – reasons for delay – not effective claim – claim not made – decision affirmed

Legislation
A New Tax System (Family Assistance)(Administration) Act 1999 sections 36, 38, 39,41,109D

REASONS FOR DECISION

Mr C Ermert, Member

9 May 2014

INTRODUCTION
1.	On 22 April 2009 Mr Adriaans, the Applicant, lodged a Newborn Child Claim for Family Assistance and Medicare form at Medicare in which he advised the birth of his son, Daniel.  In answer to question 23 Are you claiming Baby Bonus?, he marked the answer box No.  Mr Adriaans recorded no responses to question 26A Estimated taxable income from salary and wages for the 6 month period in the spaces provided under the columns You and Your Partner.
2.	On the same day, Centrelink, the service provider for the Department of Social Services and its predecessor, the Department of Families, Housing, Community Services and Indigenous Affairs, the Respondent, issued a notice to Mr Adriaans seeking an estimate of his income.  On 7 May 2009 Centrelink issued a notice advising Mr Adriaans that he could not be paid the baby bonus as Centrelink had not received the requested information (the original decision).  
3.	Mr Adriaans requested a review of the original decision on 17 January 2012.  A Centrelink officer affirmed the original decision on 16 February 2012. An authorised review officer (ARO) reaffirmed the decision on 7 March 2013.  The Social Security Appeals Tribunal (SSAT) affirmed the decision of the ARO on 12 July 2013.
4.	This matter is an application for review of the SSAT’s decision.
THE HEARING
5.	At the hearing, Mrs Catherine Adriaans, the Applicant’s wife, gave telephone evidence on affirmation.  Mr Mark Hester, a departmental lawyer, represented the Respondent and also appeared by telephone.  For the Applicant, I took into evidence a Statement of Facts, Issues and Contentions prepared by Mrs Adriaans, signed by both the Applicant and Mrs Adriaans on 13 April 2014 (Exhibit A1).  In addition, I took into evidence a bundle of documents comprising of 46 pages provided by Mrs Adriaans (Exhibit A2).
6.	For the Respondent, I took into evidence the Secretary’s Statement of Facts and Contentions (Exhibit R1).  Additionally, I took into evidence the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the Act) (the T-documents).
EVIDENCE FOR THE APPLICANT
7.	In giving her evidence for the Applicant, Mrs Adriaans referred me to her Statement of Facts, Issues and Contentions.  Mrs Adriaans said that prior to filling out the claim form, she and her husband received poor and incorrect advice from their accountant.  She said that the advice from the accountant was supported by advice received from a Centrelink officer. Mrs Adriaans said she understands that Centrelink has no record of this conversation.  
8.	Mrs Adriaans said that when the baby was born, he required immediate surgery.  At the time she and her husband believed it was important to lodge a claim with Medicare as quickly as possible to gain assistance with the baby’s care.  Mrs Adriaans said that the Centrelink officer advised them to not claim the baby bonus at that time as the Medicare claim would be fast-tracked.  
9.	Mrs Adriaans said that she and her husband were also concerned about the way their income would be attributed for the six month period.  She explained that their income varied throughout the year, as is common in the agricultural industry.  Additionally, she had been working full-time for most of the six months prior to the baby’s birth.  She thought that if that rate of income were to be extrapolated for the period of the financial year their income would exceed the allowable limit. Mrs Adriaans stated that the Centrelink officer advised her to not claim the baby bonus at this stage and that it would be better to wait in order to avoid the consequences of a possible over-payment as her income would be reconciled against their annual tax returns.  
10.	Although she had discussions with Centrelink officers from time to time, Mrs Adriaans did not seek a review of the original decision until January 2012 as she did not know there was an appeal process.  Additionally, Mrs Adriaans said that they had not received the correspondence from Centrelink.  In answer to my question, she confirmed that her address as lodged with Centrelink was the correct mailing address and said that she was not aware of any other mail that had not been delivered. 
THE LEGISLATION
11.	The relevant legislation is contained in A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act) in force at the time of the original claim.  The relevant sections are:
•	36 Need for a claim 
The only way a person can become entitled to be paid baby bonus is to make a claim in accordance with this Division.  

•	38 How to claim
…
(2) 	A claim is not effective unless:
(a)	the claim:
(i)	is made in a form and manner; and
(ii)	contains any information; and
(iii)	is accompanied by any documents;
required by the Secretary; and
(aa)	In the case of a claim for baby bonus – the claim contains an estimate of the sum of:
(i)	 the individual’s adjusted taxable income; and
(ii)	If the individual is a member of a couple on the day the claim is made – the adjusted taxable income of the individual’s partner:
For the 6 month period …

•	39 Restrictions on claiming 
…
(2)	Subject to subsection (3), a claim for payment of baby bonus in normal circumstances is not effective if it is made later than 52 weeks after … the birth of the child ...
(3)	If the Secretary is satisfied that the claimant was unable to make a claim for payment of baby bonus in normal circumstances because of severe illness associated with the birth of the child concerned, the Secretary may extend the period of 52 weeks mentioned in subsection (2) to such longer period as the Secretary considers appropriate.
 
•	 41 Secretary must determine claim
(1)… If the claim is not effective, it is taken not to have been made.
THE ISSUES
12.	The principal issue is whether Mr Adriaans lodged an effective claim for the baby bonus.  To be effective the claim must contain estimates of the taxable incomes of Mr and Mrs Adriaans (s.38(2)(aa) of the Administration Act) and must have been made within 52 weeks or longer if the period is extended by the Secretary (ss.39(2) and (3) of the Administration Act).
Preliminary Issue
13.	Before considering the principal issue, I must determine whether the Tribunal has jurisdiction to consider this application.  
14.	In his submissions Mr Hester contended that the Applicant did not seek a review of the original decision until 17 January 2012, which is more than two years and eight months after the original decision was made.  Mr Hester referred the Tribunal to section 109D(1) of the Administration Act which provides that an application for review of a decision must be made no later than 52 weeks after the applicant is notified of the decision concerned, unless the Secretary is satisfied that there are special circumstances that prevented the applicant from making an application for review (section 109D(2)).  
15.	In the Secretary’s Statement of Facts and Contentions, the respondent contends that the Tribunal does not have jurisdiction to review the application under section 109D(2) of the Administration Act as that section has not been reviewed by either the ARO or the SSAT.  Mr Hester submitted that the only way the Tribunal could have jurisdiction on this issue is if it determined a presumption that the ARO and the SSAT did in fact consider the provisions of section 109D(2) in reaching their respective decisions to affirm the original decision. 
16.	In considering this submission, I note that both the ARO and the SSAT proceeded with their deliberations in full knowledge of the dates of the original decision and Mr Adriaans’ application for a review of that decision.  Although there is no mention of section 109D(2) in either of their reasons for decision, I find it reasonable to presume that both the ARO and the SSAT were aware of the possible application of that section in this case.  Clearly the reasons for the delay in providing further information to Centrelink were thoroughly canvassed in the making of both decisions.  
17.	I find it reasonable to presume that the provisions of section 109D(2) of the Administration Act were considered by the ARO and the SSAT in making their respective decisions.  Accordingly, I determine that I have jurisdiction to review the decision of the SSAT as sought in this application.
Has Mr Adriaans Lodged an Effective Application for Baby Bonus?
18.	Section 38(2)(a)(iii) of the Administration Act provides that a claim is not effective unless it is accompanied by any documents required by the Secretary.  Section 38(2)(aa) provides that a claim for baby bonus must contain an estimate of the taxable incomes of the claimant and partner.  
19.	There is no dispute that the original claim form submitted by Mr Adriaans on 22 April 2009 (T3, page 9) did not contain an estimate of the Estimated taxable income from salary and wages for the 6 month period for Mr and Mrs Adriaans.  In her Statement of Facts, Issues and Contentions Mrs Adriaans states: 
On 22 April 2009 we lodged with Medicare a Newborn Child Claim for Family Assistance and Medicare form, however we did not include an estimated taxable income from salary and wages for the six month period after our son’s birth date.  
20.	The Centrelink file contains evidence of a notice addressed to Mr Adriaans dated 22 April 2009 (T4) requiring an estimate of income amongst other information in order to assess their claim.  Mrs Adriaans gave evidence that she did not receive this notice even though the address shown is the correct mailing address.  
21.	The receipt or otherwise of a notice from Centrelink is not relevant to the consideration of subsection 38(2)(aa) of the Administration Act.  The evidence is that the claim was not accompanied by estimates of Mr and Mrs Adriaans' taxable income.  As a result subsection 38(2)(aa) is not satisfied.  Accordingly, I find that the claim as lodged is not effective in accordance with all the requirements of subsection 38(2) of the Administration Act.
22.	On 17 January 2012 Mr and Mrs Adriaans sought a review of the original decision to not pay them baby bonus.  For the purposes of section 39(2) of the Administration Act I accept this as a re-invigoration of the original claim, albeit lodged later than 52 weeks after the birth of Daniel.  In her oral evidence and her Statement of Facts, Issues and Contentions, Mrs Adriaans stated the reason for not providing the taxable income information with the claim form was as a result of incorrect advice they had received from a Centrelink officer and their accountant. She stated further that the reason for not following up the matter within 52 weeks was because they did not receive the Centrelink notices requesting more information and later advising of the decision to not pay the baby bonus.  She also said that they did not know of the existence of an appeal process.
23.	The circumstances advanced by Mrs Adriaans are unrelated to any severe illness associated with the birth of the child. Such a relationship would be required to enliven the provisions of section 39(3) of the Administration Act.  As a result, the period of 52 weeks within which to lodge an effective claim cannot be extended by the Secretary, nor by this Tribunal.
24.	I find that an effective claim was not lodged within the 52 week period as required by section 39(2) and the period cannot be extended beyond 52 weeks.  Section 41(1) of the Administration Act provides “If the claim is not effective, it is taken not to have been made”.  Accordingly, I find that the claim lodged on 16 April 2009 by Mr and Mrs Adriaans has not been made and as a result the baby bonus cannot be paid. 
DECISION
25.	The Tribunal affirms that decision under review.

I certify that the preceding 25 (twenty ‑five) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member.	
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Associate
Dated 9 May 2014

Date of hearing	17 April 2014	
Advocate for the Applicant	Mrs Catherine Adriaans	
Advocate for the Respondent	Mr Mark Hester, Centrelink Program Review and Litigation Branch