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

[2019] AATA 5605

XKYN and Secretary, Department of Social Services (Social services second review) [2019] AATA 5605 (24 December 2019)

Division:GENERAL DIVISION

File Number(s):      2019/1958

Re:XKYN  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:24 December 2019

Place:Sydney

The decision under review is set aside and remitted with the direction that proof of registration of the birth of the Applicant’s daughter, in the form of a New South Wales Birth Certificate dated 27 November 2017, was provided to Centrelink on 28 November 2017.

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Senior Member A Poljak

Catchwords

SOCIAL SECURITY – claim for parental leave pay – whether claim was effective – paid parental leave period – whether Applicant provided proof of child’s registration of birth – Newborn Child Declaration form – Proof of Birth Declaration form – decision under review set aside and remitted 

Legislation

Paid Parental Leave Act 2010 (Cth) ss 8, 9, 10, 13, 18, 55, 56, 57, 58, 59, 60

Secondary Materials

Paid Parental Leave Guide

Department of Human Services, Processing proof of a child’s birth, Operational Blueprint Instruction 007-07030080

REASONS FOR DECISION

Senior Member A Poljak

24 December 2019

1. The Applicant seeks review of a decision of the Administrative Appeal Tribunal, Social Services and Child Support Division (SSCSD) made on 5 March 2019, which affirmed the decision made by the Department of Human Services (Department) on 23 October 2017 that the Applicant could not be paid parental leave pay.

   Background

2. The Applicant lodged a ‘pre-claim’ for parental leave pay on 6 September 2017. The Applicant nominated a paid parental leave period start date of 1 February 2018.

3. On 25 September 2017, the Applicant was advised by way of a letter from the Department that her claim for parental leave pay had been assessed. That letter included the following information:

   What you must do

   After the birth of your child you must provide us with additional information including your child’s details and proof of their birth before we can finalise your claim.

   …

   If you do not provide us with the additional information, such as your child’s details and proof of birth within 28 days of your child’s birth we may not be able to start your Paid Parental Leave period on this date.

4. In 28 September 2017, the Applicant gave birth to her daughter.

5. On 3 October 2017, the Applicant lodged a Newborn Child Declaration form (Newborn Child Declaration form). In response to Question 21, which asked ‘Do you wish to ONLY complete the Medicare Enrolment and/or Medicare Safety Net and/or digital health record registration for your newborn child?’, the Applicant answered ‘Yes’. The form indicated that, by answering ‘Yes’ to this Question, the Applicant was advising that she did not wish to claim paid parental leave pay for her newborn child and should go to Question 28 in the form. Despite this, the Applicant answered Questions 22 to 28. In response to Question 22, which asked ‘Have you registered, or applied to register, the birth of your newborn child with your state or territory registry of births?’, the Applicant answered ‘No’. The form indicated here that the Applicant could not receive paid parental leave pay until she had registered the birth of her newborn child and that she may be asked to provide proof of registration.

6. Included in the Newborn Child Declaration form was a Proof of Birth Declaration signed by a registered midwife from Westmead Hospital declaring that the Applicant gave birth to her daughter in 28 September 2017.

7. On 23 October 2017, the Applicant was advised that she would not be paid parental leave because she had not registered the birth of her daughter. It further advised that if the Applicant wished to claim the full 18 weeks of paid parental leave, she would need to make another claim within 34 weeks of her child coming into her care.

8. On 27 November 2017, the birth of the Applicant’s daughter was registered.

9. On 31 January 2018, the Applicant went overseas. She returned to Australia on 27 March 2018.

10. On 9 April 2018, the Centrelink records show that the Applicant contacted the Department to enquire as to why her claim for paid parental leave had been rejected. She was advised that because she answered ‘No’ to Question 22 in the Newborn Child Declaration form, her claim was rejected. The record states that the Applicant advised ’cso at MER CSC actually completed the form’. She was advised that she was required to provide a copy of the birth certificate of her daughter.

11. Also on 9 April 2018, the Applicant lodged a further claim for parental leave pay in which she indicated that she had registered her daughter’s birth. On 10 April 2018, the Applicant provided the Department with a birth certificate for her daughter.  

12. Centrelink records dated 9 May 2018 state:

    …Recipient has uploaded a full POB on the 03.10.2017 recipient stated that question 21 was ticked in error and that they did intend to claim FTB and PPL, Recipient attempted to upload birth certificate on the 10.04.2018. However local office did not upload correctly they will attempt to retry…

13. The Applicant subsequently provided the Department with another copy of her daughter’s birth certificate.

14. On 19 June 2018, the Applicant lodged a further claim for parental leave pay. On 21 June 2018, the Department granted the claim for the period 19 June 2018 to 27 September 2018. On 28 September 2018, the Applicant was advised that she no longer qualified for paid parental leave from that date because it had been more than 52 weeks since her daughter was born.

15. On 15 October 2018, the Applicant was advised that the Department could not pay the Applicant parental leave pay because she had returned to work on 30 April 2018. On 15 October 2018, the Applicant was also advised that the decision made on 23 October 2017 not to pay parental leave pay was incorrect, and the decision was now that the Applicant was eligible for paid parental leave for the period 9 April 2018 to 29 April 2018.

16. The Applicant sought internal review of the decision dated 23 October 2017. The authorised review officer found that the decision dated 23 October 2017 was correct and that the Department’s decision to grant paid parental leave for the period 9 April 2018 to 29 April 2018 was correct. 

    Relevant Legislative Provisions

17. Part 2.1, Division 2 of the Paid Parental Leave Act 2010 (Cth) (the Act) outlines when parental leave pay is payable to a person. Relevantly, s 8 provides that a person can only be paid parental leave pay if the Secretary makes a determination that parental leave pay is payable to the person; and ss 9 and 10 state that the Secretary cannot make a determination that parental leave pay is payable to a person unless the person is eligible and has made an effective claim. Section 13 of the Act outlines the circumstances in which the Secretary must make a determination on a primary claim.

18. Section 18 of the Act prohibits the Secretary from making a determination that parental leave pay is payable to a person for a child unless the person has verified the child’s birth. A person verifies a child’s birth if the person is the parent (other than an adoptive parent) of the child; the child is not stillborn; the person is, under a law of a State or a Territory, responsible (whether alone or jointly) for registering the birth of the child under the law; gives the Secretary a completed birth verification form for the child; and either gives the Secretary information showing that the child’s birth has been registered under the law or that the person has applied to have the birth of the child registered under the law.

19. Section 55 of the Act provides that a claim for parental leave pay is not effective unless the provisions that apply to the claim in ss 56-60 of the Act are satisfied. Relevantly, s 56 of the Act provides that:

    Requirements of the claim

    (1) The claim for parental leave pay must:

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

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

    (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:

    (a) different types of claims; or

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

20. The documents required by the Secretary for a completed birth verification form in accordance with s 56(1)(c) of the Act are listed in the Department's Operational Blueprint Instruction 007-07030080 (the instruction). Relevantly, the instruction states that the Secretary requires a:

    …Newborn Child Declaration [form] (FA081) issued by the hospital or midwife for a child born on or after 1 April 2015… [or]

    … scanned image of just the Doctor/Midwife - Proof of Birth declaration on the back page of the FA081 may be submitted online, but must be accompanied by the 'Add Newborn' service… or a claim for payment with the child's details and birth registration declaration… [emphasis added]

21. The Paid Parental Leave Guide also states:

    Centrelink cannot make a determination that PLP is payable to a primary claimant…unless the child’s birth has been verified.

    For the purposes of PLP the claimant verifies the child’s birth if the claimant:

    ·Provides proof that the child was born; and

    ·Is a parent (other than an adoptive parent) of the child and the child is not stillborn, and the parent is required under the state care and territory law to register the birth of the child, then the claimant must give information that the child’s birth has been registered or that the claimant has applied to have the child’s birth registered.

    Centrelink may approve a birth verification form for the purposes of verifying the birth of a child. For PLP purposes the claim form process includes an approved verification form.

    Applicant’s Evidence and Consideration

22. At hearing the Respondent advised that they no longer took issue with the Applicant’s answers to Questions 21 and 22 in the Newborn Child Declaration form and that the only issue to be determined in these proceedings was whether the Applicant provided proof of the registration of her daughter’s birth to Centrelink prior to 10 April 2018.

23. The Applicant gave evidence orally at hearing. She said that one week after her daughter was born she attended the Centrelink office in Merrylands in person and completed the Newborn Child Declaration form. She said that at that stage, she had not yet applied to register her daughter’s birth because it was only one week after she had given birth. The Applicant also stated that she intended to register the birth of her daughter but because of a language barrier, the Centrelink officer completed the form for her, incorrectly answering Questions 21 and 22 in the Newborn Child Declaration form.

24. The birth of the Applicant’s daughter was subsequently registered on 27 November 2017. This is confirmed by a New South Wales Birth Certificate. The Applicant claims that as soon as she received the birth certificate, she attended the Centrelink office in Merrylands to file it. The Applicant said that she saw an officer from Medicare, as the Centrelink office in Merrylands was also the Merrylands Medicare office, and was assured that the birth certificate would be uploaded or handed to Centrelink as they were all connected. At this stage, the Applicant said that she was under the impression that she had provided everything necessary to verify the birth of her daughter.

25. Despite Centrelink not having a copy of the birth certificate on file from 28 November 2017 I am not convinced that the certificate wasn’t filed. I found the Applicant to be a truthful and candid witness. Centrelink records show that the Applicant diligently completed the Newborn Child Declaration form one week after her child’s birth. The existence of this form is not in dispute; neither can be the fact that the Applicant gave birth and that the birth of the Applicant’s daughter was registered in NSW on 27 November 2017. The Applicant’s account of events surrounding the provision of her daughter’s birth certificate to Medicare/Centrelink in November 2017 is consistent with previous evidence given before the SSCSD and the fact that a copy of the birth certificate was signed by a Justice of the Peace on 28 November 2017. The Applicant states that she filed the birth certificate at the Merrylands Centrelink/Medicare office as soon as she received it and was assured that it would be provided to Centrelink. Taking all of these considerations into account, I am satisfied that the Applicant verified her daughter’s birth with Centrelink by completing a Newborn Child Declaration form and by providing proof of registration on 28 November 2017.

    Decision

26. The decision under review is set aside and remitted with the direction that proof of registration of the birth of the Applicant’s daughter, in the form of a New South Wales Birth Certificate dated 27 November 2017, was provided to Centrelink on 28 November 2017.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 24 December 2019

Date(s) of hearing:	12 December 2019
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services