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

[2019] AATA 4095

Goh and Secretary, Department of Social Services (Social services second review) [2019] AATA 4095 (2 October 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7150

Re:Huay Goh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Brigadier AG Warner, Member

Member I Fletcher


Date:02 October 2019

Place:Perth

The Tribunal affirms the decision under review.

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

Brigadier AG Warner, Member

Catchwords

SOCIAL SECURITY – Paid Parental Leave – whether an effective claim was lodged – whether the Applicant should be granted Paid Parental Leave from 30 November 2017 and not an earlier date – decision under review affirmed.

Legislation

Paid Parental Leave Act 2010 (Cth) – ss 10, 11(4)(c), 18, 55, 56

Paid Parental Leave Rules 2010 (Cth)

Cases

Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) (1988) 19 FCR 477

Cameron and Secretary, Department of Social Services [2017] AATA 2586

Krause and Secretary, Department of Social Services [2015] AATA 854

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Paid Parental Leave Guide (Version 1.58 Released 1 July 2019) 

Department of Human Services Operational Blueprint instruction, Processing Proof of a child’s birth 007-0730080

Department of Human Services Operational Blueprint instruction, Claiming family assistance and Parental Leave Pay (PPL) for a newborn child 007-01010100

REASONS FOR DECISION

Brigadier A G Warner, Member

Member I Fletcher

02 October 2019

INTRODUCTION

1. 1.        Ms Huay Ing Goh (the Applicant) seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 29 November 2018 (T2/56). The AAT1 affirmed the decision made by the Department of Human Services (the Department) on 6 December 2017 to grant the Applicant paid parental leave (PPL) from 30 November 2017, and not an earlier date (T11/42).

2. 2.        The hearing of the application was conducted on 22 August 2019. The Applicant was 
self-represented and gave oral evidence at the hearing. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.

   BACKGROUND

3. 3.        On 14 September 2017, the Applicant lodged an online application with the Department for PPL (T4/20-24).

4. 4.        On 21 September 2017, the Department sent a notice to the Applicant explaining that she must provide additional information about the child's details and proof of birth before the Department could finalise her claim, and noting she could do so by answering all the questions in the 'Add newborn child' online service (T5/25).

5. 5.        The Applicant gave birth to her child on 25 October 2017 (T8/36).

6. 6.        On 30 October 2017, the Applicant uploaded the back page of the Newborn Child Declaration Form (FA081) to the Department (T6/29).

7. 7.        On 1 November 2017, the Applicant called the Department and explained that she had uploaded the proof of birth to her record but was unable to use the online Add Newborn service (T12/51).

8. 8.        On 30 November 2017, the Applicant lodged the fully completed Newborn Child Declaration Form (FA081) with the Department (T8/32; T12/52).

9. 9.        On 6 December 2017, the Department granted the Applicant PPL with effect from 
30 November 2017 (T9/37).

10. 10.      On 17 September 2018, an Authorised Review Officer (ARO) affirmed the decision by the Department made on 6 December 2017 (T11/42).

11. 11.      On 29 November 2018, the AAT1 affirmed the decision under review (T2). The AAT1 found after “careful review” that there was no “special circumstances or backdating provisions” in the Paid Parental Leave Act 2010 (Cth) (the Act) “that would allow the Tribunal to take into account the difficult family/personal situation, the misinterpretation of the law or website inadequacies” (T2/6).

12. 12.      On 5 December 2018, the Applicant lodged an application for review with the General Division of the Administrative Appeals Tribunal (the Tribunal) (T1/1-4).

    11.     ISSUE

13. 13.      The Tribunal must decide whether the Applicant can be granted PPL from a date earlier than 30 November 2017.

    13.     LEGISLATION AND POLICY

14. 14.      The legislation and policy relevant to this decision are contained in the following:

    1.            Paid Parental Leave Act 2010 (Cth) (the Act); and

    2.            Paid Parental Leave Guide Version 1.58 1 July 2019 (the Guide).

    3.       Relevant government policy is contained in the Guide. Although the Tribunal is not bound by the Departmental policy guidelines, the Tribunal will ordinarily apply policy in reviewing a decision, unless it is unlawful or its application produces an unjust outcome. Arguments against the policy or its application will be considered, but the Tribunal will normally apply the policy unless there are cogent reasons not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634 at 645).

15. 15. Section 10 of the Act provides that:

    For the determination to be made, the person must claim

    1.         The Secretary cannot make a determination that parental leave pay is payable to a person for a child for a period unless the person has made:

    1.(a) an effective primary claim for the child (in which case the person is the primary claimant); or

    2.(b) an effective secondary claim for the child (in which case the person is the secondary claimant); or

    3.(c) an effective tertiary claim for the child (in which case the person is the tertiary claimant).

    2.         Note: See Part 24 for the rules about how to make an effective claim.

    3.         (Original Emphasis.)

16. 16. Section 11(4)(c) of the Act provides that:

    The determination must specify the person’s PPL period

    …

    1.(c) if the primary claimant makes an effective claim for parental leave pay for the child after the relevant day—the later of the following days:

    2.   (i)        the day the claim is made;

    3.   (ii)       the primary claimant’s nominated start date.

17. 17. Section 55 of the Act provides that:

    When a claim is effective

    1.(1) A claim for parental leave pay is not effective unless the requirements of the following provisions that apply to the claim are satisfied:

    2.   (a)       section 56 (which deals with the form etc. of the claim);

    3.   (b)       section 57 (which deals with the nominated start date);

    4.   (c)       section 58 (which deals with expected date of birth etc.);

    5.   (d)       section 59 (which deals with tax file number statements);

    6.   (e)       section 60 (which deals with when to make the claim).

    7.(2) A claim for parental leave pay is also not effective if it is made by a person who cannot make that type of claim under section 54.

    8.(3) A claim for parental leave pay that is not effective is taken not to have been made.

    9.(Original Emphasis.)

18. 18. Section 56 of the Act provides that:

    Requirements of the claim

    (1)   The claim for parental leave pay must:

    1.(a)       be made in the form approved, and the manner required, by the Secretary for that type of claim; and

    2.(b)       contain any information (including information about the claimant’s employer or the claimant’s employment with that employer) required by the Secretary; and

    3.(c) be accompanied by any documents required by the Secretary.

    (2)   For the purposes of paragraphs (1)(b) and (c), the Secretary may require that different information be contained in, and different documents accompany:

    1.(a)       different types of claims; or

    2.(b)       different claims of the same type of claim.

    3.(Original Emphasis.)

19. 19.      Instruction 4.1.1 of the Guide reflects this legislative requirement. It states among other requirements that:

    [A] claim for PPL is only an effective claim if it: is in a form and manner required for the type of claim, and if it contains any information required and is accompanied by any documents required.

20. 20. Section 18 of the Act provides that:

    The child’s birth has not been verified

    1.(1) The Secretary must not make a payability determination that parental leave pay is payable to a person for a child unless the primary claimant has verified the child’s birth.

    Verifying a child’s birth

    1.(2) A person verifies a child’s birth if:

    2.   (a)       the person gives the Secretary a completed birth verification form for the child; and

    3.   (b)       if subsection (3) applies to the person, the person satisfies the requirement of that subsection….

    4.(Original Emphasis.)

21. 21. The documents required by the Secretary for a completed birth verification form in accordance with s 56(1)(c) of the Act (see paragraph [18] above) are listed in the Department's Operational Blueprint, instruction 007-07030080. This instruction states that the Secretary requires:

    a.(a)       a fully completed Newborn Child Declaration Form (FA081); or

    b.(b)       the completed rear page of the Newborn Child Declaration Form (FA081), signed by the doctor or midwife, uploaded with the completed Add Newborn online questionnaire or a claim for payment with the child’s details and birth registration declaration.

    6.        

22. 22.      The Operational Blueprint instruction 007-01010100 states further:

    Information/documentation or action required

    When claiming, customers must indicate which payments they wish to claim.

    If the customer is claiming PPL, it is important they are aware:

    1.          of the time limits for claiming the maximum 18 week PPL period

    2.          if their child's date of birth or date of enter into care is on or after 1 October 2016, PPL is treated as income for calculating the rate of income support payments

    Information/ documents required.

    1.          For PPL claims:

    2.o    Date of birth and primary care details

    3.o    Proof of birth/ entry into care

    4.o    Notification of birth registration

    5.o    Nominated start date for Parental Leave Pay

    6.o    Australian residence details (documents may be required)

    7.o    Employer details, where relevant (customers should discuss with their employer and obtain correct Australian Business Number (ABN) and contact details to use for their PPL claim). See Role of the employer in Parental Leave Pay (PPL)

    8.o    PPL work test details (evidence to support the PPL work test may be required)

    9.o    PPL income test details (evidence to support the PPL income test may be required)

    10.o    Tax file numbers

    11.o    Payment destination details.

    2.

    3.

    4.

    5.       EVIDENCE

23. 23.      The evidence before the Tribunal comprised:

    1.            The ‘T Documents’ (T1-T13, pp 1-70);

    2.            Applicant’s response to Statement of Facts and Contentions by the Respondent, filed 10 April 2019 (Exhibit A1);

    3.            Secretary’s Statement of Facts & Contentions dated 21 March 2019 
(Exhibit R1); and

    4.            The oral evidence of the Applicant.

    5.       CONSIDERATION

24. 24.      The Applicant asked the AAT1 to backdate the PPL to her child’s date of birth, 25 October 2017 (T2/6, para 1).

25. 25.      In her application to this Tribunal, the Applicant claimed the AAT1 decision was wrong because:

    3.       The decision made is that the review is unsuccessful. I do understand that the Paid Parental Leave should be paid after the proof of birth is provided which is 
30 November 2017. However, my reasons applying for compensation is not considered in this decision making. The proof of birth was provided on the 
30 November 2017 is not because of my own delay but it is because of THE NEGLIGENCE OF CENTRELINK STAFF.  I have been trying to sort this out from the 1^st November 2017 by calling centrelink but NOTHING HAS BEEN DONE! I have called 3 times and finally they processed the application on the 
30 November 2017. So I strongly believe that I deserved some compensation because it is the negligence of centrelink that delayed my payment (T1/2).

    4.       (Original emphasis.)

    5.        

    6.        

26. 26.      Further, in Exhibit A1 the Applicant states:

    8.       It is undeniable my effective claim in on 30 November 2017 which brings about the  review’s decision. However I would want the AAT to consider from the perspective of negligence of Centrelink. All the discussions so far since my first appeal have been revolving around the legislation but I do want my perspective of dispute on work responsibilities and professionalism to be considered (Exhibit A1/1).

27. 27. The Respondent contends that the Applicant did not make an effective claim until 
30 November 2017, being the date she lodged the fully completed Newborn Child Declaration Form (FA081) with the Department. The Respondent contends that pursuant to s 11(4)(c) of the Act, the PPL start day for the child is 30 November 2017, and not an earlier date.

28. 28.      At Exhibit R1, paragraphs 26-29, the Respondent details the Applicant’s difficulties and confusion in lodging an effective claim and the Department’s blueprint for helping customers in similar circumstances. However, the evidence is, and not disputed by the Applicant, that the effective PPL claim was not lodged until 30 November 2017.

29. 29. In summary, s 11(4) of the Act requires an effective PPL claim to be lodged within 
28 days of the child’s birth. For the claim to be effective, verification of the birth must be provided. The section also provides that where a claim is made 28 days after the birth, PPL can only be paid from the date of the claim and only when the birth has been verified. Section 18 of the Act states that a PPL claim cannot be paid until the birth is verified.

30. 30.      In the decision under review, the AAT1 stated: “Careful review of the legislation reveals no special circumstances or backdating provisions exist within the Act that would allow the Tribunal to take into account the difficult family/personal situation, the misinterpretation of the law or website inadequacies” (T2/6, para 6).  The present proceedings are of course 
de novo, however this Tribunal’s fresh careful review reaches the same conclusion.

31. 31. The Respondent submits that regardless of the difficulties the Applicant faced with the website, there is no provision within the Act or the Rules which empowers the Tribunal to determine that in this case the PPL start day is earlier than 30 November 2017. The Respondent cites, relevantly in the Tribunal’s view, two cases supporting their submission.

32. 32.      In Cameron and Secretary, Department of Social Services [2017] AATA 2586, 
Senior Member Davies considered whether an effective claim had been made in circumstances where the Applicant endeavoured to lodge her claim form online, but contended that a computer glitch prevented her from doing so. Senior Member Davies stated:

    15.39. The Guide requires the claim to be lodged in the form and manner required by the Secretary. The Encyclopaedic Australian Legal Dictionary defines "lodge" as meaning:

    16. "Deliver and place a document or thing into the possession of a person in relation to an official procedure. Lodgement requires a degree of physical acceptance by the person to whom the thing is given and is more than the mere placing or depositing of the object with that person; Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) [1988] FCA 339; (1988) 19 FCR 477; 83 ALR 449.

    …The recipient has a discretion as to whether or not to effect the lodgement. If the document does not comply within internal guidelines or procedures prescribed for lodgement (if any), then the document will not have been lodged even though it may be in the recipient's possession or physical control".

    1.40. Whilst I accept that the Applicant believes that when she created the FTB claim online on 29 October 2015 that as she said in her evidence she "had done the form correctly and submitted it correctly", there is no evidence of any computer glitch in the Department which affected the submission of the claim.

    2.41.  I am satisfied that on the evidence before me the Applicant failed to lodge the FTB claim online on 29 October 2015 in the manner and form required by the Secretary and that it was not lodged correctly until it was submitted by the Applicant on 7 October 2016.

33. 33.      In Krause and Secretary, Department of Social Services [2015] AATA 854, Deputy President Hack dismissed an application pursuant to s 42B of the Administrative Tribunals Act 1975 (Cth) in circumstances where the Applicant sought a decision that her claim for PPL was made on a date earlier than the date which she made an effective claim (due to special circumstances). Deputy President Hack stated:

    4.   2. The application by Ms Krause seeks to review the decision of the Social Security Appeals Tribunal made on 1 June 2015 affirming the Departmental decision to pay Ms Krause parental leave pay with effect from 16 January 2015, the date on which the claim was lodged and not an earlier date, in particular the date of birth of the child of 29 November 2014.

    …

    1.   5. The result is that the start date for Ms Krause's PPL period is the day the claim was made.

    2. 6. There are, as the Social Security Appeals Tribunal correctly identified, no mechanisms in the Act for altering that start date, whether in exceptional circumstances or otherwise.

34. 34. The Respondent submitted that regardless of the difficulties the Applicant faced with the website, there is no provision within the Act or the Rules that empowers the Tribunal to determine that the PPL start day is earlier than the 30 November 2017.

35. 35.      In the present matter the evidence is, and it is not in dispute, that the Applicant lodged a claim (pre-claim) on 14 September 2017 and provided proof of birth of the child on 
30 November 2017. It follows that the correct start date for the Applicant’s PPL is 
30 November 2017.

36. 36. There is no provision in the Act that would allow the Tribunal to consider a question of compensation and any other avenue of relief is outside the Tribunal’s jurisdiction. The Applicant told the Tribunal that she had been provided with the relevant forms for the Scheme for Compensation for Detriment Caused by Defective Administration and could consider lodging a claim under the Scheme if the Tribunal affirmed the decision currently under review.

37. 37. The Respondent agreed with the conclusions of the AAT1 that the Act does not create a discretion to take into account the kind of mitigating factors raised by the Applicant such as "website inadequacies" (T2, p 6).

    Conclusion

38. 38.      Considering all the evidence and the circumstances of this matter, and having satisfied itself with regards to the relevant legislation and policy, the Tribunal finds there is no provision within the legislation that empowers the Tribunal to determine that the PPL start day is earlier than 30 November 2017.

    2.       DECISION

39. 39.      Based on the above reasons, the Tribunal affirms the decision of AAT1 dated 
29 November 2018. This means that the Applicant’s application for review is unsuccessful.

    4.        

    5.        

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner 

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

Associate

Dated: 02 October 2019

Date(s) of hearing:	22 August 2019
Applicant:	In person
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore