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

[2020] AATA 3747

Reilly and Secretary, Department of Social Services (Social services second review) [2020] AATA 3747 (24 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/2580

Re:Holly Reilly

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:24 September 2020

Place:Sydney

The reviewable decision is set aside and the matter remitted to the Respondent for reconsideration on the basis that the Applicant returned to work on 29 January 2018.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

SOCIAL SECURITY – paid parental leave – whether Applicant had returned to work before submitting an effective claim – whether work performed was for a permissible purpose – decision under review set aside and remitted 

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 37

Paid Parental Leave Act 2010 (Cth) ss 31, 48

SECONDARY MATERIALS

Paid Parental Leave Guide

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

24 September 2020

INTRODUCTION

1. On 12 January 2018, an officer of the Department of Human Services (the Department), now known as Services Australia, rejected the Applicant’s claim for Paid Parental Leave (PPL) under the Paid Parental Leave Act 2010 (Cth) (the Act).

2. On 17 May 2018, this decision was affirmed by an Authorised Review Officer (ARO) of the Department. In essence, the ARO found that the Applicant lodged her claim for PPL after she had returned to work.[1]

   [1] T8, 47.

3. On 28 August 2018, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO.[2]

   [2] T2, 9.

4. On 10 May 2019, the Applicant filed an application for review of the AAT1’s decision, and an application for an extension of time to file the application for review, with this Tribunal.

5. On 7 June 2019, the Tribunal granted the Applicant’s application for an extension of time to lodge her application for review.

   EVIDENCE

6. The Tribunal received documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents), running over 67 pages.

7. The Applicant provided:

   (a)Two statutory declarations:

   (i)By the Applicant, dated 29 October 2019;

   (ii)By her mother, Ms Debra Noelene Reilly, dated 29 October 2019.

   (b)Two Psychological reports:

   (iii)By Dr Gurprit Ganda, Clinical Psychologist A Psychological Assessment, dated 2 March 2020;

   (iv)By Mr Alfred de Robillard, Registered Psychologist, undated;[3]

   (c)Copy of an undated Apprehended Domestic Violence Order, issued by the Local Court of New South Wales, wherein she is named as the person in need of protection;[4]

   (d)Various invoices relating to her business. 

   [3] T1, 7.

   [4] T1, 8.

8. The Respondent provided a Statement of Issues, Facts and Contentions, dated 9 March 2020.

   THE HEARING

9. The matter was heard by the Tribunal on 5 May 2020.

10. The Applicant gave the following evidence by telephone. 

11. At all relevant times, the Applicant owned and operated a Fitness Studio called Fit and Radiant. She did not have a permanent location but operated from various school halls and community centres. She used different names for various activities. She is registered with Google for advertising purposes and has a Facebook page.

12. The Applicant said that before and after her child was born, she sometimes subcontracted her services to others. She also employed three persons to conduct class fitness sessions. 

13. During the final stages of her pregnancy, in March and April 2017, she was no longer able to personally conduct fitness sessions, which involved some high energy activities including ‘tumbling’. She said that she did not work from the time her child was born in April 2017 until the beginning of the 2018 School Term One.

14. The Applicant said that she applied for PPL on 20 April 2020, shortly after her baby was born, by completing a Newborn Child Declaration (NCD).[5]

    [5] T4, 32.  The Form is referred as the FAO81.

15. Some six weeks later, she contacted the Department regarding her PPL claim, and was informed that she had to fill out a specific PPL Claim Form. It was not sufficient simply to register the birth of the child.

16. She told the Tribunal that although she had completed the application process when her first child was born, she was not familiar with the process and had mistakenly assumed that she only needed to complete the NCD.

17. The T documents contain a PPL claim form which stated that it was created on 7 September 2017 and submitted on 21 December 2017.[6] 

    [6] T5, 36-41.

18. The application form contains the following statements relating to the Work Test:[7]

    [7] T5, 39.

Hours worked	I have worked at least 8 hours every week between 9 March 2016 and 5 April 2017.
Returned to work	I returned to work on 5 July 2017.

1. In evidence to the Tribunal, the Applicant said she indicated 5 July 2017 on the PPL Claim Form because she wrongly believed that she could only claim 12 weeks of PPL.[8] She identified that date as 12 weeks from the birth date.

   [8] In fact, the maximum period for which a person may be paid PPL is 18 weeks: T3, 11.

2. The Applicant said that her statement did not capture the true state of affairs. She said that when she answered the question she was simply projecting forward, on the (mistaken) basis that she was entitled to 12 weeks PPL, rather than directing her mind to whether or not she had, as a matter of fact, returned to work. She argued that she should not be bound by her mistake in this instance.

   CONSIDERATION

3. This case turns on two questions:

   (a)On what date was the claim made?

   (b)Had the applicant returned to work by that date?

   The date of claim

4. A Centrelink file note, dated 7 September 2017, indicates that the Applicant contacted Centrelink about paid parental leave on that day.[9] A second file note dated 8 September 2017 indicates that the Applicant called Centrelink on that date to enquire whether she was considered partnered for the purposes of Carer Payment. [10] A third file note dated 21 December 2017 contains the following:

   Customer lodged FAO81 [PPL Claim Form] on the 01052017.  Customer thought that by her ticking the choice ‘I want to finalise my claim that I made…’ in the FAO81 that she will be automatically [be] assessed for PPL, FTB etc. Assisted the customer in finalising her PPL/FTB through the ACC as customer said she has had multiple contacts, suffering from stress and DVO and she just does not know where she is going with the claim.[11]

   [9] T9, 53.

   [10] T9, 54.

   [11] T9, 55.

5. The evidence before the Tribunal supports a finding that the Applicant submitted an effective claim for PPL on 21 December 2017, the date on which it was received and registered by the Department.

6. The evidence before the Tribunal does not support a finding that a valid claim was submitted prior to 21 December 2017. I have taken into account the difficulties encountered by the Applicant in applying online, and the other difficulties she was experiencing in her personal life as a survivor of domestic violence.

   When did the Applicant return to work? Was it before 21 December 2017?

7. Section 31(2) of the Act provides, relevantly:

   A person is eligible for parental leave pay for a child on a day if, on that day:

   …

   e) the person has not returned to work...

8. Section 48 of the Act provides:

   A person returns to work on a day that is on or after the birth of a child if, on that day, the person performs one hour or more of paid work other than for a permissible purpose.

9. The Paid Parental Leave Guide provides:

   2.2.13 Return to work & when paid work is for a permissible purpose for PLP

   Introduction

   Once a person has returned to work they are no longer eligible for PLP… Note, however, that they may still receive a PLP instalment relating to a period prior to the day they returned to work.

   …

   Where a person performs work for a permissible purpose (1.1.P.140) (see below) they are not considered to have returned to work. Defence force members and law enforcement officers compulsorily recalled to duty (1.1.R.05) also are not considered to have returned to work.

   …

   When is a person considered to have returned to work?

   A person returns to work on a day if, on that day, the person performs one hour or more of paid work (1.1.P.20) other than for a permissible purpose. Where a person performs voluntary work and is not being paid, they will not have performed paid work.

   What is a permissible purpose?

   What constitutes a 'permissible purpose' is different for a self-employed person compared to a person who is not self-employed.

   Permissible purpose for a self-employed person

   A self-employed person is a person who performs work for the purpose of a business that is carried on by the person (whether alone or with others), or an entity that is controlled by the person (whether alone or with others). A person who is employed by, or is a managing director of a company which they control, and through which they operate their business, would fall within this definition. This would include a person who runs a farm which is owned by a trust or other entity, as long as the person controls the trust or entity (either on their own or with others).

   For claimants or recipients within this category, paid work is for a permissible purpose if it consists of overseeing the business or is an occasional administrative task for the purposes of the business. This reflects the reality that a self-employed person may still need to oversee their business and perform administrative tasks during the first year of their baby's life.

   Only ad hoc activities undertaken by a self-employed person would be regarded as work performed for a permissible purpose. Permissible activities in this context could include:

   ·arranging repair of equipment,

   ·paying an account,

   ·checking the delivery of an order, or

   ·dealing with an ad hoc dispute.

   A self-employed person who is actively engaged in running or maintaining the daily operations of the business during their PPL period would be regarded as having returned to work and would not be regarded as working for a permissible purpose.

   [Emphasis added][12]

   [12] T3, 25.

10. The Respondent’s solicitor says that the Applicant is bound by her statement in the PPL Claim Form itself that she returned to work on 5 July 2017. She was working when she lodged the application in December 2017 and therefore ineligible.

11. He argued that the evidence shows that the Applicant performed paid work in the latter part of 2017. Therefore, a finding that her PPL claim was effective only on 21 December must necessarily be fatal to her claim, because a person is ineligible for PPL after they have returned to work.[13]

    [13] Section 31(2)(e) of the Act.

12. The Respondent contends that the activities performed by the Applicant between the birth of her child and July 2017 indicate that she had returned to work by 5 July 2017 as she stated in her PPL claim form.

13. The Respondent referred to the Applicant’s tax return as suggesting that she returned to work before 21 December. According to income information contained with her PPL Claim Form, the Applicant earned taxable income as follows:

    (a)1 July 2015 to 30 June 2016: $21,714;

    (b)1 July 2016 to 30 June 2017: $10,000;

    (c)1 July 2017 to 30 June 2018: $10,000.[14]

    [14] T5, 40.

14. The Respondent referred to three invoices, provided by the Applicant, relating to dance classes held from April to December 2017 as evidence that the Applicant had returned to work well before the end of the year.

    (a)Invoice dated 15 October 2017: $1,350;

    (b)Invoice dated 19 October 2017: $1,350;

    (c)Invoice dated 20 November 2017: $1,080.

15. The Applicant conceded that she performed some work-related duties after her daughter was born in April 2017 and up until the commencement of Term One 2018.  I take notice of the fact that Term One of the 2018 School Year in New South Wales commenced on 29 January 2018.

16. A self-employed person may conduct some work-related duties (called ‘permissible activities’) without being deemed to have returned to work.

17. The Applicant says the she did not do anything other than minor administrative duties and these fall into the category of permissible activities within the Act.

18. She said all the work relating to these invoices was done by someone else. She was simply performing the routine business of issuing an invoice and collecting the money.

19. The invoices do not establish that the particular activities referred to were personally conducted by the Applicant. She stated that she did not personally render these services. I accept the Applicant’s evidence on this point.

20. In my view, the issuing of these invoices falls under the heading of minor administrative duties. I find that her business activities between the birth date of her child and 29 January 2018 fell into the category of ‘permissible activities’ relating to running her business. 

21. With respect to the Applicant’s taxable income for the three years referred to above, the Applicant’s reduced income in the two later periods is consistent with having a child in April 2017.[15] 

    [15] T4, 33.

22. Based on the Applicant’s oral testimony and the statutory declarations provided by herself and her mother, I find that the Applicant returned to work on 29 January 2018, the date of commencement of School Term One.

23. I note a minor discrepancy between the evidence of Applicant and her mother. The Applicant indicates that the date of her return was Monday 29 January 2018, whereas her mother indicates a commencement date of Wednesday 31 January 2018. I accept the Applicant’s evidence on this point.

24. The Respondent’s solicitor indicated that, if the Tribunal were so to find, it would be appropriate to set aside the decision and remit the matter to the Respondent, because the Applicant had not been fully assessed under the work test.  I agree with this course of action.

25. The reviewable decision is set aside and the matter remitted to the Respondent for reconsideration on the basis that the Applicant returned to work on 29 January 2018.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

Associate

Dated: 24 September 2020

Date(s) of hearing:	5 May 2020
Applicant:	By telephone
Solicitors for the Respondent:	Services Australia