Editors --- "Maternity allowance: claim lodged after 26 weeks; whether severe illness" [2007] SocSecRpr 43; (2007) 9(4) Social Security Reporter, Article 1

• CAMPBELL and SECRETARY TO THE DFaCSIA
• Background
• Issue
• Discussion and the law
• Formal decision

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Maternity allowance: claim lodged after 26 weeks; whether severe illness

CAMPBELL and SECRETARY TO THE DFaCSIA

(2007/1568)

Decided: 20th July 2007 by N. Bell

Background

Maxim was born on 27 October 2004 and his father, Campbell, lodged a claim for maternity allowance on 18 May 2005 – 29 weeks after the birth. It was not in dispute that Campbell’s partner suffered from postnatal depression. Campbell argued that this together with the family’s move back to Australia from Sweden to a house in mid-renovation; Maxim’s asthma, eczema, and repeated bouts of gastroenteritis and colds; and Campbell’s return to a demanding job made him unable to lodge the claim within 26 weeks.

Issue

The sole issue considered by the AAT was whether a claim could not be lodged within 26 weeks of the child’s birth for maternity allowance because of the mother’s illness.

Generally a claim for maternity allowance must be made within26 weeks of the child’s birth.

Section 39(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Act) provides for an exception to the 26 week rule which is when a claimant is ‘unable to make the claim’ within26 weeks ‘because of severe illness associated with the birth of the child concerned’.

The AAT considered the following issues:

- what was the practical effect of the mother’s illness on Campbell’s ability to lodge the claim?

- did other factors limit Campbell’s ability to lodge the claim?

In order to apply the exemption the AAT considered whether a severe illness needed to be the sole cause of an inability to lodge a claim or could it be a dominant, substantial or merely contributing cause?

Discussion and the law

The Secretary argued that the illness suffered by the baby’s mother did not prevent the baby’s father from lodging the claim – and it is he who was the claimant. The Secretary also pointed to other things that Campbell was able to achieve during the26week period, including relocating his family, managing renovations and returning to his job and argued that these achievements demonstrated his ability to attend to various matters.

The AAT accepted Campbell’s evidence that during the period of his partner’s illness, she would be distraught and tearful when he arrived home from work at about 7.00 pm. He would then take over the care of the two children and put them to bed. After attending to cooking and cleaning, he would spend time with his partner discussing her concerns and attempting to provide support to her. Campbell undertook all of the shopping for the family and dealt with bill paying. He argued that they did cope – but barely. His partner did not want to speak with anyone but him about her condition but did eventually agree to talk to Campbell’s father, a psychiatrist who was able to provide her with weekly therapy and counselling which ultimately helped her. Campbell’s evidence was that it was some time before the load on him diminished even though he felt some relief to know his partner was getting some assistance.

Campbell contended that his partner’s illness had a pervasive effect on day to day life and resulted in a lack of capacity and opportunity to deal with external administrative tasks.

The AAT also accepted Campbell’s evidence that other factors also had an effect on his capacity to attend to a claim for maternity allowance such as:

- returning from Sweden to a partly renovated house and being forced to spend considerable time on the renovations for months after the family’s return and the difficulty and stress of living in an unfinished house with two small children;

- the demands of his return to full time employment as the manager of a busy tour operation company, including at least four weekends interstate, between February and April 2005, further reducing the time he had available to attend to caring for his family and dealing with the state of the unfinished house;

- the baby suffered repeated illness including gastroenteritis, eczema, bronchial infections and asthma;

- moving and resettling a family from Sweden to Sydney four weeks after the birth of a child; and that

- all this was compounded by the baby having been born overseas which meant that the usual forms were not available at the time of his birth.

Campbell said he first learnt of the availability of the allowance after contact with Medicare to organise immunisation and Medicare registration. The allowance had not yet been introduced when their first child was born. He noted that the claim for maternity allowance is included as part of the claim form for family tax benefits and to complete the form, he had to obtain a tax file number and foreign income statements. He had obtained the form in March 2005, about four to six weeks before the 26 week deadline. He also pointed to the different deadlines for family tax benefit (two years) and maternity allowance (26 weeks).

The AAT considered the meaning of the phrase ‘because of severe illness’ in Amanda Taylor and Secretary, Department of Families, Community Services and Indigenous Affairs (2007).

In that case Mrs Taylor was granted an extension of the period within which to make a claim for maternity payment due to severe illness associated with the birth of her child.

The Member said:

It is not necessary that the illness was the only operative cause of her inability to lodge the claim within the prescribed time. The legislation...does not require a sole cause test to be applied...A causal relationship must exist between the inability and the illness before the discretionary power is enlivened.

The meaning of the phrase ‘because of’ was further considered by the Supreme Court of Victoria in Trust Company of Australia Ltd v Commissioner of State Revenue (2006)VSC 64. Here, the absence of the word ‘solely’ was specifically considered. The Court found that it does not matter that the event was ‘because of’ other factors provided it was also ‘because of’ the relevant factor. Hansen J. decided that the use of the word ‘solely’ in other sections of the legislation strengthened the view that the words ‘because of’ on their own do not require a sole cause test.

The AAT concluded that s.39(3) of the Act did not require that the severe illness be the sole cause of Campbell’s inability to lodge a claim within the 26 week period. The AAT considered it was sufficient that the illness was a dominant or substantial cause.

The AAT considered that the period following the baby’s birth was a difficult time for the Campbell family. There was the disruption of an international move, a recent birth, renovations to the home, a demanding job, two small children to care for and Maxim’s illness. In addition, Campbell’s partner was suffering from postnatal depression which was a debilitating illness and an underlying and pervasive factor, affecting one of the two adults in a family already experiencing considerable difficulties. In its pervasiveness, Campbell’s partner’s post-natal depression had an exacerbating effect on all of the other difficulties faced by the family. Without the exacerbating effect of her illness, all of the other factors faced by Campbell would likely have been less difficult to manage. The postnatal depression was therefore at least a substantial cause of Campbell’s inability to make the claim within the 26 week period.

The AAT found that Campbell was unable to make a claim for payment of the maternity payment within 26 weeks of Maxim’s birth because of illness associated with the birth of that child. Therefore the 26 week period within which Campbell was required to make the claim should be extended to 18 May 2005. The AAT concluded that the claim was therefore an effective one and Campbell was entitled to be paid the maternity payment.

Formal decision

The decision under review was set aside and instead the Tribunal decided to extend the period within which Campbell was required to make the claim for maternity payment to 18 May 2005.

[S.P.]