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

[2015] AATA 854

Krause and Secretary, Department of Social Services (Social services second review) [2015] AATA 854 (29 October 2015)

Division	GENERAL DIVISION
File Number	2015/3410
Re	Hayley Krause
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	29 October 2015
Date of written reasons	9 November 2015
Place	Brisbane

The application is dismissed pursuant to section 42B of the AdministrativeAppealsTribunalAct1975 (Cth).

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Deputy President PE Hack SC

CATCHWORDS

SOCIAL SECURITY – paid parental leave – applicant seeks review of relevant start day –premature birth and health problems – late lodgement of claim – start day is date claim is made – no mechanism to alter start date whether exceptional circumstances or not – no reasonable prospect of success – application dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 42B

Paid Parental Leave Act 2010 (Cth), ss 6, 10, 11, 54(1)(c)

REASONS FOR DECISION

Deputy President PE Hack SC

9 November 2015

1. This is an application by the respondent in the proceedings, the Secretary of the Department of Social Services, to dismiss, pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth), the application made by Ms Hayley Krause. The Secretary contends that the application by Ms Krause has no reasonable prospects of success and thus ought be dismissed under paragraph 1(b) of that section.

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.

3. There were significant health problems with, and following, the birth as a consequence of it being a significantly premature birth. It is readily understandable that in circumstances where Ms Krause was concerned with the health of her child she did not lodge her claim for paid parental leave in the period immediately following the birth. It is also understandable, having regard to the medical reports that detail the complications following birth, that she regards her circumstances as exceptional. If the meaning of that expression were at large, it is probably correct to say that her circumstances were exceptional. But, as I hope to explain, the expression has a particular meaning in the Paid Parental Leave Act 2010 (Cth) and the Rules made under that Act.

4. Section 10 of the Paid Parental Leave Act requires the making of an effective claim before the Secretary may determine that parental leave pay is payable to a person. Section 11 requires the Secretary to specify the period for which parental pay leave is payable. Section 11(4) deals with the “maximum PPL period start day”. Where, as happened here, an effective claim is not made on or before the “relevant day”, that is, the day that is 28 days after the day the child was born, the effect of s 11(4)(c) is that the maximum PPL period start day is the later of the following days,

   (a)the day the  claim is made

   (b)the primary claimant’s nominated start date

   The nominated start date is, as the description suggests, a date nominated by the claimant. It performs no work in the present case as the day the claim was made is undoubtedly the later of the two days.

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

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.

7. Ms Krause points to s 276 which explains how the Act applies to claims made in exceptional circumstances. It is understandable that she regards that as a potential avenue, however in my view it cannot assist for at least two reasons.

8. First, it does not have the effect of enabling the Secretary to treat the start date as an earlier date even if exceptional circumstances were found. More importantly, the term “exceptional circumstances” is not at large. What is meant by the expression is explained in s 6 of the Act which provides that a claim is made in exceptional circumstances if, relevantly, it is made by a person who satisfies paragraph 54(1)(c) of the Act. That paragraph identifies a person who satisfies circumstances prescribed by the Paid Parental Leave Rules as being exceptional circumstances in which the primary claim can be made. It is unnecessary to detail those rules, it will suffice for present purposes to say that they deal with persons who are not the birth parent of the child and do not cater for the type of situation Ms Krause found herself in.

9. It is, as I observed in the course of discussion with Ms Krause, a somewhat odd result. It seems curious that Parliament did not contemplate that some parents might, for sound reasons, be distracted after the birth of a child and not be able to make the claim within the usual period of 28 days after the birth. But I am obliged, as was the Social Security Appeals Tribunal, to take the legislation as I find it. In those circumstances it is readily apparent that Ms Krause’s claim has no reasonable prospects of success.

10. It is not a matter where different evidence may lead to a different outcome. The application has no reasonable prospects of success because the Act does not permit the type of claim Ms Krause seeks to make. In those circumstances, there is no purpose to be served in allowing the matter to linger any longer in the Tribunal. The power to dismiss ought to be exercised and the application will be dismissed. 

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 9 November 2015

Date of hearing	29 October 2015
Applicant	In person
Solicitors for the Respondent	Ms S Page, Program Litigation and Review Branch, Department of Human Services