Editors --- "Family tax benefit: whether payable for a stillborn child" [2009] SocSecRpr 6; (2009) 11(1) Social Security Reporter, Article 6

• SECRETARY TO THE DFHCSIA and THOMPSON
• Background
• Considerations and the law
• Formal decision

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Family tax benefit: whether payable for a stillborn child

SECRETARY TO THE DFHCSIA and THOMPSON

(2008/1131)

Decided: 18th December 2008 by N. Bell

Background

Thompson gave birth to a stillborn baby in November2006. Centrelink rejected her claim for bereavement payment and the SSAT set aside that decision.

Considerations and the law

Bereavement payment comprises three components: baby bonus, maternity immunisation allowance and family tax benefit (FTB). The Secretary contended that while Thompson was eligible to receive the baby bonus and maternity immunisation allowance, she was not eligible to receive FTB on the basis that in order for FTB to be payable, a child must be an ‘FTB Child’ within the meaning of s.22 of the A New Tax System (Family Assistance) Act1999 (the Act). As her son was a stillborn child, he was not an FTB child.

‘FTB Child’ is defined in s.22(2) of the Act:

Individual aged under18

22 (2) The individual is an FTB child of the adult if:

(a) the individual is aged under 18; and

(b) the adult is legally responsible (whether alone or jointly with someone else) for the daytoday care, welfare and development of the individual; and

(c) the individual is in the adult’s care; and

(d) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult.

Thompson submitted that her son satisfied each of these requirements of the Act:

An individual under the age of 18 years – all stillborn children are under 18;

The adult is legally responsible for day to day care – had her son lived, she would be responsible for him; and she was responsible for overseeing funeral arrangements and the proper care of his body and burial or cremation; there is also the care a pregnant woman takes to ensure the baby she carries remains healthy; this requirement goes more to legal responsibility and the identification of the responsible person than it does to establishing eligibility based on whether the child is living or deceased;

The individual is in the adult’s care – had her son lived, he would be in her care; again, this goes more to the question of permanence of the presence of the child with the adult rather than eligibility based on whether the child is living or deceased; and

The individual is an Australian resident – both the parents were Australian residents.

The Tribunal considered that on the face of it, s.22 applies to a living child and the use of the word ‘individual’(defined in paragraph 22(1)(aa) of the Acts Interpretations Act 1901 as referring to a natural person), the use of the term ‘resident’ which denotes a living person, and the use of the present tense throughout the section all suggest a living child. The Tribunal stated that it is noteworthy that s.31 of the Act makes specific provision for the continuation of payment of FTB after the death of a child.

The Tribunal also noted that ss.36(4) and 39(3) of the Act specifically provide that baby bonus and maternity immunisation allowance are payable with respect to a stillborn child but there was no similar specific provision in relation to FTB. This suggested that the intended meaning of s.22(2) of the Act is that a stillborn child is not an FTB child and therefore there was a need to make specific provision for stillborn children in relation to maternity immunisation allowance and baby bonus. The absence of specific provision for stillborn children in relation to FTB points to the absence of intention to provide for FTB in the case of a stillborn child.

The Tribunal also considered the policy expressed in the Department’s Family Assistance Guide (chapter 2.1.1.10)which lends support to this view:

“A stillborn child cannot be an FTB child, however baby bonus and MIA can be paid for a stillborn child.”

The Tribunal also noted Mead and Secretary, Department of Family and Community Services [2003] AATA 584which held that a stillborn child could not satisfy the requirements in s.22(2)of the Act and was therefore not an FTB child.

The Tribunal acknowledged the emotional pain of bearing a stillborn child and recognised a parent’s legitimate need to have the birth of her child properly acknowledged. The Tribunal also noted the distinction made in the legislation between a live baby, even if the baby dies within minutes of birth, and a stillborn baby which can serve only to exacerbate the grief of a parent of a stillborn baby.

However, the Tribunal considered that as the legislation stands, a stillborn child is not an FTB child within the meaning of the Act and therefore FTB is not payable in respect of a stillborn child.

Formal decision

The Tribunal affirmed the decision under review.

[S.P.]