Amii Lyall and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 435
•11 July 2012
[2012] AATA 435
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2040
Re
Amii Lyall
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member R W Dunne
Date 11 July 2012 Place Adelaide The Tribunal sets aside the decision under review.
..................[SIGNED]................................
Senior Member R W Dunne
CATCHWORDS
FAMILY ASSISTANCE - Child Care Benefit - payment of benefit that took into consideration absences greater than 42 days in financial year - any absences were "permitted” absences - should Child Care Benefit entitlement be adjusted to reflect permitted absences - whether errors in reports provided by child care service - decision under review set aside.
LEGISLATION
A New Tax System (Family Assistance) Act 1999 ss 10 & 11
A New Tax System (Family Assistance) (Administration) Act 1999 ss 48, 108, 109A, 111 and 142
Child Care Benefit (Absence From Care - Permitted Circumstances) Amendment Determination 2007 (No. 1)REASONS FOR DECISION
Senior Member R W Dunne
11 July 2012
INTRODUCTION
Aimii Lyall (“applicant”) is the applicant in this case. In the 2009/2010 financial year, she was in receipt of Child Care Benefit (“CCB”) for her children, Dylan and Tyler. The child care service that cared for Tyler was required to keep records of attendances and, where appropriate, determine if absences were “permitted” for CCB purposes.
Ms Lyall contacted the respondent regarding her Child Care Rebate and was advised by an Authorised Review Officer that she would have to provide appropriate proof to the child care service to have the additional absence days approved. Instead, she decided to seek review of the respondent’s decision by the Social Security Appeals Tribunal (“SSAT”) and the matter was referred back to the respondent for review. An Authorised Review Officer stated that CCB decisions made by child care services were not reviewable by the Family Assistance Office and he decided that he had no jurisdiction to review the decision. The matter was referred back to the SSAT which affirmed the decision under review. Ms Lyall has applied to this Tribunal for a review of the decision of the SSAT.
At the hearing, Ms Lyall represented herself and Mr Anthony Parker (from the Centrelink Advocacy Branch) appeared for the respondent. Pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, I received into evidence the T documents (Exhibit R1), together with the applicant’s documents (Exhibit A1).
ISSUES FOR THE TRIBUNAL
The issues for the Tribunal are:
(a)Does the Tribunal have jurisdiction to review the matter?
(b)Were any of the absences from child care that exceeded 42 days “permitted” absences?
(c)Should the applicant’s Child Care Benefit entitlement be adjusted to reflect the permitted absences?
LEGISLATION
The legislation relevant to this matter is found in the A New Tax System (Family Assistance) Act 1999 (“Assistance Act”) and the A New Tax System (Family Assistance) (Administration) Act 1999 (“Administration Act”). Section 48 of the Administration Act contains an overview of the process involved if an individual is conditionally eligible for CCB by fee reduction. Section 48 relevantly reads:
“(1) An approved child care service is obliged to notify the Secretary if an individual enrols a child for care by the service.
(2)Once that enrolment is confirmed by the Secretary, the service is obliged to give weekly reports to the Secretary about the care provided to the child.
(3)If a report is given, and a determination of conditional eligibility under section 50F is in force in respect of an individual and a child with the effect that the individual is conditionally eligible for child care benefit by fee reduction for care provided by the approved child care service to the child in a week, the Secretary will calculate the amount by which the fees charged by the service for the care are to be reduced.”
Under ss 108(1) and 109A of the Administration Act, when read with s 111 of the Administration Act, a person affected by a reconciliation decision may apply to the SSAT for review of the decision. If a decision reviewed by the SSAT is affirmed, varied or set aside by the SSAT, the person may under s 142 of the Administration Act apply to the Tribunal for review. Section 142 relevantly reads:
“(1) If:
(a)A decision has been reviewed by the SSAT; and
(b)The decision has been affirmed, varied or set aside by the SSAT;
the Secretary or a person affected by the decision made by the SSAT may apply to the AAT for review of that decision.
Note: If an application is made under this section for review of a decision about a person's entitlement to child care benefit, and a decision has also been made about the person's entitlement to child care rebate, that decision about rebate may be automatically reviewed: see Division 5.
(2) For the purposes of subsection (1), the decision made by the SSAT is taken to be:
(a)where the SSAT affirms a decision – that decision as affirmed; and
(b)where the SSAT varies a decision—that decision as varied; and
(c)where the SSAT sets a decision aside and substitutes a new decision—the new decision; and
(d)where the SSAT sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the SSAT—the directions or recommendations of the SSAT.”
Section 10 of the Family Assistance Act deals with CCB that can be paid if a person is charged for child care when their child is absent from the child care service. Section 10 (when read with s 11) of the Family Assistance Act relevantly reads:
“Section 10 - Effect of absence of child from care of approved child care service other than an approved occasional care service
Absence from part of a session
(1) For the purposes of this Act, if a child is absent from part only of a session of care provided by an approved child care service (other than an approved occasional care service) the service is taken to have provided that part of the session of care to the child.
Initial 42 days absence
(2) For the purposes of this Act, if:
(a) a child is absent from all of one or more sessions of care that would otherwise have been provided to the child by an approved child care service (other than an approved occasional care service) on a day (even if the child is not absent from some or all of another session or sessions of care provided by the service or another service on the day); and
(b) the day does not fall:
(i) before the day the service has started providing care for the child; or
(ii) after the day the service has permanently ceased providing care for the child; and
(c) one or more of the hours in the session of care would, if the session were taken to have been provided to the child, count towards the weekly limit of hours for which an individual or an approved child care service is eligible for child care benefit in respect of the care of the child; and
(d) before the day, not more than 41 days have elapsed in the same financial year on which a session of care is taken to have been provided under this subsection to the child;
the service is taken to have provided the session of care to the child.
(2A) Without limiting subparagraph (2)(b)(ii), an approved child care service is taken to have permanently ceased providing care for a child in the circumstances specified in an instrument under subsection (2B).
(2B) The Minister may, by legislative instrument, specify circumstances for the purposes of subsection (2A).
(2C) If an approved child care service has permanently ceased providing care for a child (including because of subsection (2A)), then, for the purposes of subparagraph (2)(b)(ii), the service is taken to have done so on the day the child last physically attended a session of care provided by the service.
Additional absence days permitted
(3) For the purposes of this Act, if:
(a) a child is absent from all of a session of care that would otherwise have been provided to the child by an approved child care service (other than an approved occasional care service); and
(b) more than 42 days have elapsed in the same financial year on which a session of care is taken to have been provided under subsection (2) to the child; and
(c) one of the following applies:
(i) the absence is due to the illness of the child, the individual in whose care the child is, that individual's partner, or another individual with whom the child lives, and a medical certificate covering that illness is obtained from a medical practitioner and given to the service;
(ii) the absence is due to the child's attendance at a pre-school;
(iii) the absence is due to alternative care arrangements being made for the child because the child does not have to be at school on a pupil-free day;
(iv) the absence occurs in circumstances specified in a determination under section 11 as permitted circumstances for the purpose of this subparagraph; and
(d) one or more of the hours in the session of care would, if the session were taken to have been provided to the child, count towards the weekly limit of hours for which an individual or an approved child care service is eligible for child care benefit in respect of the care of the child;
the service is taken to have provided the session of care to the child.”
“Section 11 - Minister may make determinations in relation to the absence of child from child care
Absences from care in permitted circumstances
The Minister may, by legislative instrument, determine that specified circumstances are permitted circumstances for the purpose of subparagraph 10(3)(c)(iv) or paragraph 10A(2)(b).”
Section 10 of the Family Assistance Act must be read with the Child Care Benefit (Absence From Care - Permitted Circumstances) Amendment Determination 2007 (No.1) (“Determination”). The Determination specifies circumstances in which an absence of a child from child care is permitted for CCB purposes. Section 10 of the Family Assistance Act operates to the effect that the first 42 days of absence of a child from care is taken to have been provided, for CCB purposes, regardless of the reason for the absence. Absence at an approved child care service because of a public holiday is a permitted circumstance, and absence because of a public holiday that occurs within the first 42 absence days will be treated as care that has been provided.
BACKGROUND AND EVIDENCE
The factual background in this case can largely be taken from the reasons for decision of the SSAT. Ms Lyall’s son, Tyler, was in child care at an approved child care service during the 2009/2010 financial year. She had not used child care for Tyler from 4 April 2010. In the period 11 January 2010 to 17 January 2010, Tyler’s absence from child care exceeded the allowable 42 days in any one financial year. The child care service did not consider the excess absences as permitted absences. The respondent decided to pay reduced rates of CCB for Tyler due to the number of absences from the child care service. According to the records of the child care service, in the 2009/2010 financial year up to 2 April 2010, Tyler had 52 or 53 absences from child care.
At the end of the 2009/2010 financial year, a reconciliation of CCB occurred with the records of the child care service. As a result of the reconciliation, Ms Lyall did not receive a further top-up or rebate. She was told that she needed to provide a parenting plan as evidence for the previously unexplained absences otherwise the reconciliation amount would stand. She lodged a statutory declaration with the respondent, but was told that this had to be provided directly to the child care service who, if satisfied with the explanation, could arrange with the approval of the respondent, to make changes to the assessment. After a further unsuccessful contact with the respondent, Ms Lyall decided to seek a review of the respondent’s decision directly to the SSAT, rather than pursue a decision from the child care service.
In viewing Ms Lyall’s case, the SSAT found that it had jurisdiction to review the respondent’s reconciliation decision.
In giving her evidence, Ms Lyall said that she had been living in Darwin with a partner, she separated from him in August 2008 and she moved back to Adelaide in February 2009. She said she had obtained a copy of her CCB family statement from the child care service and noted that it contained a number of incorrect absences, including approximately 6 public holidays and absences where sick certificates were available. She had also obtained records from Tyler’s kindergarten which showed that he had been attending the kindergarten, for full and part days in the 2009/2010 financial year, when he was recorded in the child care records as attending or being absent from child care.
CONSIDERATION
Does the Tribunal have jurisdiction to review the matter?
The respondent contended that a reconciliation decision had been made in Ms Lyall’s case which was reviewable under s 109A of the Administration Act. That was the decision under review in her case. The respondent further contended that, as there was authority for the reconciliation decision to be reviewed under s109A, the SSAT had authority to review the decision pursuant to s 111 of the Administration Act. Further, as a result of the SSAT’s decision to affirm the decision under review, the Tribunal also has jurisdiction to review the reconciliation decision pursuant to s 142 of the Administration Act. I agree with these various contentions of the respondent and affirm that the Tribunal has jurisdiction to review the matter raised in Ms Lyall’s case.
Were any of the absences from child care that exceeded 42 days “permitted” absences?
In the present case, the records of the child care service that Ms Lyall had obtained and provided to the Tribunal showed that Tyler had 52 or 53 absences from child care in the 2009/2010 financial year up to 2 April 2010. These records were the same as the records attached to the respondent’s Statement of Facts, Issues and Contentions as Annexure 1. On my analysis of the child care service records, between 6 July 2009 and 10 January 2010 there were 43 absences. Between 12 January 2010 and 2 October 2010, there were a further 10 absences. The following recorded absences were, in fact, public holidays:
Date Public Holiday 5 October 2009 Labour Day 25 December 2009 Christmas Day 1 January 2010 New Year’s Day 26 January 2010 Australia Day 11 March 2010 Adelaide Cup Holiday 2 April 2010 Good Friday
According to Ms Lyall’s evidence, and in extracts from the applicant’s documents in Exhibit A1, the following absences were supported by medical certificates, or equivalent:
Date Medical Certificate 1 September 2009 Woodcroft Medical Centre 15 October 2009 Woodcroft Medical Centre 5 January 2010 Morphett Vale Family Practice
On the basis of the above analyses, the 43 absences between 6 July 2009 and 10 January 2010 should be reduced by 3 public holidays and 3 medical certificates, resulting in reduced absences of 37 days.
Ms Lyall’s evidence was that there were other recorded absences where Tyler attended kindergarten for either all or part of the absence days. She said these occasions occurred on 8 September 2009, 15 September 2009 and 22 September 2009. She said that other recorded absences were also incorrect, based on attendance records she had obtained from Tyler’s kindergarten.
Having regard to the records produced by Ms Lyall, it appears there are at least 6 recorded absences which could (or should) be treated as permitted absences. On Ms Lyall’s evidence, there may be other instances of incorrect recording of child care absences when comparing the child care service records with the records provided by Tyler’s kindergarten.
Should the applicant’s Child Care Benefit entitlement be adjusted to reflect the permitted absences?
Given the permitted absence figures referred to in paragraphs 14 and 15 above, I am of the view that Ms Lyall’s CCB entitlement should be adjusted to reflect a reduction of at least 6 permitted absences, resulting in a reduced number of absences of only 37 days instead of the 43 days recorded by the child care service.
During the course of my analyses of the child care records and the medical certificates furnished by Ms Lyall, Mr Parker largely agreed with the increased number of permitted absences that I have outlined in these reasons.
DECISION
For the reasons outlined above, the Tribunal sets aside the decision under review and directs that the matter be remitted to the respondent for reconsideration in accordance with the Tribunal’s findings.
I certify that the preceding 21 (twenty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne. ....................[SIGNED]...........................
Dated 11 July 2012
Date of hearing 26 April 2012 Applicant In person Advocate for the Respondent Mr A Parker Solicitors for the Respondent Centrelink Program Litigation & Review Program
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