Fahy and Secretary, Department of Social Services (Social services second review)

[2021] AATA 3258

Fahy and Secretary, Department of Social Services (Social services second review) [2021] AATA 3258 (9 September 2021)

Division:GENERAL DIVISION

File Number:          2021/1474

Re:Laree Fahy

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member K. Parker

Date:9 September 2021

Place:Melbourne

The Tribunal sets aside the Decision Under Review and remits the matter to the Secretary for reconsideration with a direction that Ms Fahy is taken to have made her claim for PP on 4 February 2020 under s 12 of the Social Security (Administration) Act 1999 (Cth).

........................................................................

Member K. Parker

CATCHWORDS

SOCIAL SECURITY – parenting payment – Applicant seeks back payment to 2017 – consideration of when claim was made or deemed to have been made – Applicant asserts claim form posted in 2017 – no record held by Centrelink of claim form having been received – Tribunal found that claim form not sent in 2017 – Tribunal decided that parenting payments not to be back-dated to 2017 - Tribunal satisfied deeming provision under s 12 of the Social Security (Administration) Act 1999 (Cth) applies – Tribunal determined that claim taken to have been made on 4 February 2020 – decision set aside and remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Evidence Act 1995 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

SECONDARY MATERIALS

Australian Government, Guides to Social Policy Law - Social Security Guide

REASONS FOR DECISION

Member K. Parker

9 September 2021

1. This application involves an issue about whether the Applicant, Ms Laree Fahy, should be paid parenting payments (PP) (at the “single” rate), from a point in time when she claims to have posted a completed claim form for PP to Services Australia – Centrelink (Centrelink) on 20 September 2017. There is no record of this claim form having been received by Centrelink on its computer system. Some years later, an online claim for PP was lodged by Ms Fahy and she has been paid PP as from 23 March 2020 in accordance with a decision made by Centrelink on 5 May 2020 (Original Decision).

2. Ms Fahy sought review of the Original Decision. A Centrelink authorised review officer (ARO) affirmed the Original Decision on 4 November 2020 (ARO Decision).

3. On 9 December 2020, Ms Fahy sought review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 affirmed the ARO Decision on 5 March 2021 (Decision Under Review).

4. On 11 March 2021, Ms Fahy sought review of the AAT1 Decision by the General Division of the Administrative Appeals Tribunal (this Tribunal). Both parties lodged submissions and evidence for consideration by this Tribunal, including a set of documents lodged by the Respondent pursuant to the obligation arising under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents) and a set of documents lodged by the Respondent under s 38AA (ST-Documents).

5. A hearing took place by telephone on 16 August 2021 and both parties were present. The Secretary, Department of Social Services (Secretary), was legally represented. Ms Fahy was unrepresented. Ms Fahy was able to articulate her position to the Tribunal without any difficulty.

6. For the reasons outlined below, this Tribunal sets aside the Decision Under Review and remits the matter to the Secretary for reconsideration with a direction that Ms Fahy is taken to have made her claim for PP on 4 February 2020 under s 12 of the Social Security (Administration) Act 1999 (the Administration Act).

   ISSUE

7. On 20 September 2017, Ms Fahy claims that she posted, by ordinary mail, a completed PP claim form to Centrelink and contends that she should be paid PP from this date. Put simply, the issue for consideration by this Tribunal is whether Ms Fahy should be paid PP as from 20 September 2017, instead of 23 March 2020, or from some other date if any of the deeming provisions in the Administration Act apply.

   LEGISLATIVE FRAMEWORK

8. The Social Security Act 1991 (the Act) and Administration Act govern the eligibility and other requirements relating to the payment of PP.

9. Policy guidance in relation to assessing claims for PP is also under the Australian Government, Guides to Social Policy Law - Social Security Guide (SS Guide), issued by the Department of Social Services. The Tribunal must consider and apply the policy guidance unless there are cogent reasons not to do so, such as if to do so, would be inconsistent with the provisions of the Act or the Administration Act.

10. Section 11(1) of the Administration Act makes it a mandatory requirement for a person to make a claim for a social security payment before they are entitled to be paid any such payment. Section 23(1) of the Act defines “social security payment” to include a “social security pension”, and in turn, defines “social security pension” to include PP. So, the requirement under s 11(1) applies in Ms Fahy’s case with respect to her wish to receive PP as from 20 September 2017. This raises the question of when Ms Fahy first made a claim for PP.

11. Section 16 of the Administration Act sets out when a person is considered to have made a claim for a social security payment. This provision is reproduced below (emphasis added):

    (1)       A person makes a claim for a social security payment or a concession card:

    (a)       by lodging a written claim for the payment or card; or

    (b)       by making the claim in accordance with subsection (7).

    (2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

    (3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.

    (4) A written claim is lodged by being delivered:

    (a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or

    (b)       to a person approved for the purpose by the Secretary; or

    (c)in a manner, and to a place, approved for the purpose by the Secretary.

    (5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.

    (6)     The Secretary may approve a place or person outside Australia for the purpose of subsection (4) for the lodgment of:

    (a) claims made under a scheduled international social security agreement; or

    (b) claims for AGDRP in relation to a major disaster that occurred outside Australia; or

    (c) claims for AVTOP.

    (7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

    (8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section.

12. The SS Guide, at paragraph 8.1.1.20, states as follows: 

    All necessary questions in the claim form MUST be answered. A claim form may specify that a form, document or other attachment needs to be provided with the claim form. A claim is complete and can be lodged when the required documentation specified in the claim and within the claimant's control is included with the claim. Different arrangements apply for a vulnerable claimant (see below).

    …

    Note: The online claim process assists a claimant to ensure that all of the required

    documentation is provided before the claim can be lodged. A claim is made once it has been lodged. The manner in which a claim may be lodged may be restricted to online/electronic or postal lodgement. Vulnerable claimants and people with special circumstances may be able to lodge in an alternative manner after contacting Services Australia.

13. The “start date” is the date upon which a person’s claim for a social security payment becomes payable. Sections 41 and 42 of the Administration Act read in conjunction with clause 3 of schedule 2 to the Administration Act provide that the “start date” will be the date upon which the claim is made or the date that the person made contact with Centrelink (for instance, by telephone), provided they lodged the applicable claim within 14 days of the contact date.

14. Sections 12, 13 and 15 of the Administration Act comprise deeming provisions where a claim may be deemed to be made on an earlier date. The Tribunal will consider each of these deeming provisions below, in the context of Ms Fahy’s circumstances.

15. The Tribunal is bound to apply the provisions of the Act and the Administration Act and does not have any general discretion to disregard those laws when applying them to a person claiming social security payments.

    CONSIDERATION

    Did Ms Fahy “make a claim” for PP on 20 September 2017?

16. The T-Documents contain a Centrelink record showing the online claims history of Ms Fahy.[1] These records show an attempt by Ms Fahy to lodge an online claim for PP at the “single” rate, on 20 September 2017. These records show a claim by Ms Fahy was “created” on this date and it was ascribed a claim number.[2]  Ms Fahy gave evidence at the hearing that she encountered difficulties completing the online claim and reached a point where she was unable to proceed to the next page of the online claim and this prevented her from completing the online claim form. A printout of the information that was submitted by Ms Fahy as part of her partially completed online PP claim on 20 September 2017, can be found at ST-Documents ST1.

    [1] Refer T-Documents T3.

    [2] Refer T-Documents T3/19 and ST1.

17. Ms Fahy told the Tribunal that when she encountered technical difficulties on 20 September 2017, on the same day, she printed out, completed, and posted to Centrelink, a hard copy PP claim form.  When asked by the Tribunal where she had posted the form, Ms Fahy said she had posted it in a post-box located in front of the Warragul Post Office. When asked by the Tribunal whether Ms Fahy had sent the PP claim form by registered mail, express post or any other type of post where she was given a tracking number, she confirmed that she had not done so and that she had sent the hard copy PP claim form by ordinary mail.

18. The Secretary’s representative informed the Tribunal that as at September 2017, the relevant PP (single) claim form that was approved by the Secretary was entitled “Claim for Parenting Payment” (SC277.170705) (see ST-Documents ST2). At the hearing, when asked by the Tribunal, Ms Fahy said she could not remember exactly but she thought that the claim form found at ST2 was the same as the hard copy PP claim form that she had completed and posted on 20 September 2017.

19. The Secretary highlights that in the approved claim form, a person claiming PP (single) is required to provide information regarding their personal details, residence, relationship status, dependent children, accommodation, income and assets.[3] The Secretary contends that the online claim form that Ms Fahy started completing in 2017, did not satisfy the requirement to use a form that was approved by the Secretary. The Tribunal does not agree with this contention. The Centrelink website, as at 20 September 2017, made express provision for and allowed persons to access, complete and submit an online PP claim form. Further, the form at ST2, which the Secretary contends is the approved form, seems to encourage prospective claimants to make their PP claim online. Specifically, on the first page of this form the following statement appears:

    …

    Claiming Parenting Payment online is faster. To claim online go to

    humanservices.gov.au/centrelinkonline

    …

    [3] Refer Secretary’s Statement of Facts, Issues and Contentions (Secretary’s SFIC) dated 15 July 2021 at paragraph [18].

20. Further, the Secretary contends that the PP claim was not validly made by Ms Fahy because she had failed to complete all parts of the online PP claim form. The Tribunal agrees with this contention. It is evident from Ms Fahy’s own account at the hearing that she had given up on trying to complete the PP claim process online as she had reached a point, part way through this process, where she could not go to the next page due to technical problems, and decided to lodge a paper PP claim form instead. The Tribunal notes, as highlighted by the Secretary, that the incomplete claim form at ST1 shows that details of Ms Fahy’s income and assets were missing.

21. Accordingly, the Tribunal finds that:

    (a)on 20 September 2017 Ms Fahy attempted to complete an online PP claim form through Centrelink’s website. The Tribunal infers that the online PP claim form, and/or manner of making a PP claim online, was approved by the Secretary for the purpose of subsections 16(2) and/or (4) of the Administration Act. This inference is based on the matters referred to in paragraph [19] above. However, Ms Fahy failed to successfully submit the online PP claim due to technical difficulties;

    (b)on 20 September 2017, after experiencing those technical difficulties, Ms Fahy downloaded, from Centrelink’s website, printed and completed a hard copy PP claim form, being the same as the form found at ST2. The Secretary contends that this form is approved by the Secretary for the purpose of subsection 16(2) of the Administration Act, and the Tribunal finds accordingly.

22. Now, the Tribunal must consider whether, on the balance of probabilities, Ms Fahy posted a completed hard copy PP claim form at the post-box in front of the Warragul Post Office on 20 September 2017, as Ms Fahy asserts. The Secretary contends there was no evidence before the Tribunal to support such a finding that the hard copy PP claim form had been delivered to Centrelink. This is incorrect. There was oral evidence given by Ms Fahy under oath that she had posted the form. The Tribunal is required to decide whether or not it accepts this oral evidence by Ms Fahy.

23. If the Tribunal finds that Ms Fahy had placed the completed PP claim form into the post-box at Warragul Post Office on 20 September 2017 as claimed by Ms Fahy, the Tribunal considers that this would constitute “delivery” of the PP claim form “in a manner, and to a place, approved for the purpose by the Secretary” for the purpose of subsection 16(4) of the Administration Act. Such approval of the manner of delivery is set out clearly on the front page of the hard copy PP claim form, as reproduced below:

    Returning your form    Check that all required questions are answered and that the form is signed and dated.

    Important Note: You must return all supporting documents at the same time you lodge this claim form. If you do not return all documents, your claim may not be accepted. The only exception will be if you are waiting for medical evidence or other documents from a third party.

    You can return this form and any supporting documents:

    ·online – submit your documents online (excluding identity documents). For more information about how to access an Online Account or how to lodge documents online, go to humanservices.gov.au/submitdocumentsonline

    ·by post – return your documents by sending them to:

    Department of Human services

    Families

    Reply Paid 7802

    CANBERRA BC ACT 2610

    ·     in person – if you are unable to submit this form and any supporting documents online or by post, you can provide them in person to one of our service centres.

24. The above statement on the claim form, which the Secretary contends was approved by the Secretary, satisfies the Tribunal that the Secretary has approved the making of the claim by returning the completed claim form “by post – return your documents by sending them [emphasis added] to [details of a reply paid address of the Department of Human Services]”. If the Tribunal finds that Ms Fahy had sent the hard copy PP claim form to the address stated in the above paragraph, then this was sufficient to constitute the making of a claim for PP in accordance with s 16 of the Administration Act.

25. However, the Tribunal finds, on the balance of probabilities, that Ms Fahy did not post this form as she claims to have done. The Tribunal wants to make it clear that it is not suggesting that Ms Fahy has sought to deliberately mislead the Tribunal about this factual matter. Instead, the Tribunal considers it likely that Ms Fahy’s memory is flawed given the significant passage of time, and while she might believe that she returned the form by post as claimed, it is more likely than not that she mistakenly remembers posting it when in fact she did not. There are several reasons why the Tribunal has made this finding as set out in paragraphs [26] to [31] below.

26. Firstly, Ms Fahy’s (social security payment) claim history shown at T-Document T3 indicates that before September 2017, Ms Fahy had claimed other types of social security payments, i.e. family tax benefits, parenting payment and Newstart allowance (NSA). The Tribunal infers from this that as at 20 September 2017, Ms Fahy was familiar with the way in which Centrelink  operates when processing claims, and specifically, that Centrelink would not “do nothing” upon receiving a claim but instead, would contact the claimant to notify them of Centrelink’s decision whether to accept the claim or whether further information was required to assess the claim. The Tribunal is satisfied that if Ms Fahy had posted the PP claim, she would have twigged there was something amiss when she did not hear back from Centrelink about it.

27. After 20 September 2017, there was no evidence before the Tribunal of Ms Fahy having had any further communications with Centrelink until 2020 about the status or outcome of her purported 2017 PP claim. Specifically, Ms Fahy did not follow it up at any stage during this period to find out what decision had been made by Centrelink about her claim. Ms Fahy told the Tribunal that she did not follow it up because she had been granted parental leave payments and she did not think she would also be entitled to PP.  Evidence before the Tribunal also records that Ms Fahy has claimed that she had spoken to “associates of Centrelink” who she knew informally (but not any Centrelink representative directly or officially), and they had told her that Centrelink had probably rejected her PP claim because she had not immunised her child.

28. The Tribunal does not accept either of these explanations as to why Ms Fahy did not follow up with Centrelink in relation to the purported PP claim made on 20 September 2017. The Centrelink records indicate that Ms Fahy contacted Centrelink on 16 October 2019 to enquire about family tax benefits.[4] At that time, Ms Fahy had the opportunity to also enquire about the status of the PP claim that she claimed to have made in September 2017, or to confirm her assumption about whether this claim had been rejected for either of the reasons referred to in the above paragraph. The fact that Ms Fahy did not do so, supports a finding that it was more likely than not that she did not follow through with submitting the hard copy PP claim, by posting it as claimed. Ms Fahy, by her own evidence, said that this was a stressful time for her. The Tribunal notes that she separated from her partner eight months earlier in January 2017. Ms Fahy was also caring for a three-month old child as a single parent. It is within the realm of possibilities that she had every intention of posting the hard copy PP claim, but the Tribunal considers it more likely than not, that she did not get around to doing so.

    [4] Refer T-Documents T13/83.

29. Secondly, there are no records on Centrelink’s computer system of the hard copy PP claim form having been received by Centrelink at any time after 20 September 2017. Ms Fahy refers to a statement made by a Centrelink employee suggesting that Australia Post or Centrelink may have lost the completed claim form. The Tribunal considers that this evidence is not probative and at best, constitutes a speculative comment by a person who was not a direct witness to Ms Fahy posting the PP claim form on 20 September 2017. The Tribunal expects that this comment by the Centrelink representative was most likely made to appease Ms Fahy. Be that as it may, it does not assist the Tribunal in determining the likelihood or not of the claim form having been posted by Ms Fahy on 20 September 2017 as claimed. The absence of any record held by Centrelink evidencing or referring to the receipt of the completed hard copy PP claim form, weighs in favour of the Tribunal finding that this form was not posted by Ms Fahy on 20 September 2017 as claimed or at all.

1. Thirdly, there is no corroborating evidence before the Tribunal that the claim form was posted on 20 September 2017. Ms Fahy could have chosen to pay a modest fee to send the claim form by express post, or by registered post, whereby she would have been issued with a tracking number able to be retained and produced by her as evidence of her having posted this important document. Furthermore, the Tribunal asked Ms Fahy at the hearing, whether she had taken a photocopy of her completed PP claim form and retained it. Ms Fahy said she had not done so. Ms Fahy referred to a covering letter dated 20 September 2017 which was included in the T-Documents. The Tribunal has considered that document but taken alone, it does not serve to persuasively corroborate her claim that she posted the hard copy PP claim form on 20 September 2017 as claimed. The Tribunal considers that the absence of any further corroborating evidence, supports its finding that the claim form was not posted by Ms Fahy on 20 September 2017.

2. Fourthly, while the Tribunal is not bound to apply the Evidence Act 1995 (Cth) in applications before it, the Tribunal notes that when a notice is sent by ordinary post, there is a rebuttable presumption that it is deemed to have been delivered within seven days after it was posted, unless it can be proved to the contrary.[5] The Tribunal considers that this reflects a general expectation, which is well founded, that when items are sent by ordinary post using Australia Post services, in almost all cases, they reach their intended destination. The Tribunal acknowledges that it is always possible that someone at Australia Post or at Centrelink might have misplaced Ms Fahy’s PP claim form, but the Tribunal considers the chance of this occurring is remote. The Tribunal considers it most unlikely that Australia Post would have lost or not delivered Ms Fahy’s completed PP claim form if it had been posted by her.

   [5] Refer s 160 of the Evidence Act 1995 (Cth).

   Do the deeming provisions under s 15 apply?

3. Application of any of the deeming provisions under s 15 is dependent upon the decision-maker being satisfied that it is reasonable for those provisions to be applied. However, the Tribunal does not consider that any of the deeming provisions in s 15 apply in Ms Fahy’s circumstances for the following reasons.

4. Subsection 15(1), read in conjunction with subsections (2) and (3), of the Administration Act provides that a claim for a social security payment may be deemed to have been made at an earlier time, if, at that earlier time, the person made an “incorrect claim”. An “incorrect claim” is defined in subsection (2), as meaning that the person made a claim for a social security payment for which they were not qualified to receive, and the person was qualified to receive another type of social security payment.  

5. In this case, Ms Fahy made an online PP claim on 5 April 2020. At this time, Ms Fahy was caring for a child as a single parent who was born in June 2017.  The Tribunal finds that when she made the online PP claim on 5 April 2020, she was qualified to receive PP. For this reason, the deeming provision in subsection 15(1), read in conjunction with subsection 15(2), does not apply to Ms Fahy.

6. Subsection 15(4) provides that a claim for a social security payment may be deemed to be made at the time of an earlier claim made by the person for a pension, allowance, benefit or other payment under a Commonwealth law or the Act (or Administration Act) or under a Commonwealth administered program “that is similar in character to a social security payment”, in circumstances where the person was qualified to receive the social security payment at the time the earlier claim was made by the person. A similar deeming provision is enacted under subsection 15(4A) which provides that a claim may be deemed to have been made at the time of an earlier claim made for an income support payment, in circumstances where the person was qualified to receive another income support payment at the time the earlier claim was made by the person.

7. The Tribunal is satisfied on the evidence before it, that Ms Fahy had not made an earlier claim, i.e. before 5 April 2020, for a pension, allowance, benefit or other payment under a Commonwealth law or the Act (or Administration Act) or under a Commonwealth administered program “that is similar in character to a social security payment”, or for another income support payment, to trigger the potential application of the deeming provisions under either subsections 15(4) or (4A) of the Administration Act. Before 5 April 2020, Ms Fahy had claimed other social security benefits at different times. Those claims were accepted, and she received payment for those claimed benefits.

8. The deeming provision under subsection 15(4B) does not apply in Ms Fahy’s case as this provision relates to claims made for supplementary payments. The term “supplementary payments” is defined in subsection 15(5) of the Administration Act. It does not include PP.

9. The Tribunal concludes that the deeming provisions under s 15 do not apply in Ms Fahy’s case in respect of the online PP claim that she made on 5 April 2020.

   Do the deeming provisions under s 13 apply?

10. The deeming provisions under s 13 of the Administration Act have potential application when a person is suffering from a medical condition or where the circumstances related to that medical condition have had a significant adverse effect on the person’s ability to lodge the claim at an earlier time. They also extend to a situation where the person is caring for a person or partner to which this applies, or to the case where the claimant falls into a class of persons determined in an instrument under section 14A, namely, the Social Security (Administration) (Class of Persons – Intent to Claim) Determination 2018.

11. However, the deeming provision under subsection 13(1) requires the person to have lodged their claim within 14 days after they contacted Centrelink. The deeming provisions under subsections 13(2), (3) and (3A) require the person to have lodged their claim more than 14 days, but not more than 13 weeks after contacting Centrelink. 

12. In Ms Fahy’s case and based on the Tribunal’s findings as set out above, Ms Fahy lodged her claim on 5 April 2020. Centrelink records that were before the Tribunal show that Ms Fahy did not have contact with Centrelink in respect of her proposed claim for PP at any time in the 13 week period prior to lodging her PP claim on 5 April 2020. Instead, Ms Fahy contacted Centrelink and discussed making a claim for PP on 5 April 2020 and after that telephone conversation, on the same day, Ms Fahy duly lodged her online PP claim.

13. For this reason, one of the mandatory requirements under each of the deeming provisions under subsections 13(1), (2), (3) and (3A) have not been met. On this basis, the Tribunal concludes that none of the deeming provisions under s 13 apply.

    Do the deeming provisions under s 12 apply?

14. Section 12 of the Administration Act provides as follows:

    (1) The Secretary may determine that, for the purposes of the social security law, a person is taken to have made a claim for an income support payment (the new payment), if:

    (a) the person became qualified for the new payment while receiving another income support payment; or

    (b) the person became qualified for the new payment immediately after ceasing to receive another income support payment.

    (2) The person is taken to have made the claim for the new payment on the day specified in the Secretary’s determination. That day must not be earlier than:

    (a) the day that is 13 weeks before the day on which the Secretary’s determination is made; or

    (b)if the person became qualified for the new payment after the day referred to in paragraph (a)—the day on which the person became qualified for the new payment.

15. The Secretary accepts that Ms Fahy may be taken to have made an earlier claim

    for PP at the single rate, prior to her submitting the online PP claim on 5 April 2020. The Secretary asserts that Ms Fahy may be transferred from NSA to PP under section 12 of
    the Administration Act. Subsection 23(1) of the Act defines the term “income support payment” to mean a “social security pension” (among other things). As mentioned above, a “social security pension” includes a “social security payment”, which in turn, includes PP.

16. The Secretary submitted to the Tribunal as follows:[6]

    25.The Secretary notes that the Applicant was initially receiving a ‘social security benefit’ as she was receiving newstart allowance until 24 August 2017 [ST3]. Newstart allowance has more recently become jobseeker payment. Subsequently, the Applicant became qualified for another ‘social security pension’ as she qualified for parenting payment (single) when she gave birth to her daughter; [name omitted] on [X] June 2017 [ST4].

    26. The Secretary therefore accepts that the Applicant should be taken to have made a claim for parenting payment (single) 13 weeks before the Secretary made its original decision on 5 May 2020. Accordingly, the Applicant’s parenting payment (single) should commence from 4 February 2020.

    [6] Refer Secretary’s SFIC dated 15 July 2021 at paragraphs [25] and [26].

17. Ms Fahy became qualified for PP at the time her child was born in June 2017. On the date of birth of the child, the Centrelink record at ST3 indicated that the “benefit status” of Ms Fahy’s NSA was listed as “current”. Based on this evidence and the Certificate of Birth of Ms Fahy’s child at ST4, the Tribunal finds that the requirement under subsection 12(1)(a) is met.

18. The Tribunal is satisfied that the Secretary, in Ms Fahy’s case, was able to make a determination under subsection 12(2) specifying the date upon which Ms Fahy is taken to have the PP claim. However, the date specified in the determination must not be any earlier than the 13 weeks preceding the date the Secretary makes the determination and must not be before the person will be qualified to receive the PP. The Secretary contends that the Secretary made the Original Decision on 5 May 2020 and for this reason any date specified by the Secretary if he had made such determination under s 12 on this date could not have been earlier than 4 February 2020. Ms Fahy was qualified to receive PP on this date as her child was born in June 2017.

19. The Tribunal agrees with this contention and standing in the shoes of the original decision-maker considers that it was appropriate for the Secretary (or his authorised delegate) to have made a determination on 5 May 2020 specifying that the date Ms Fahy is taken to have made the PP claim is 4 February 2020.

    CONCLUSION

20. Based on the findings of the Tribunal as set out in these Reasons for Decision, the Tribunal sets aside the Decision Under Review and remits the matter for reconsideration with a direction that Ms Fahy is taken to have made her claim for PP on 4 February 2020 under s 12 of the Administration Act.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

......[sgd]........

Dated: 9 September 2021

Date of hearing:   16 August 2021

Advocate for the Applicant:               Self-represented

Advocate for the Respondent:           Ms Vincci Chan

Solicitors for the Respondent:           Services Australia