Boundy and Health Insurance Commission

[2001] AATA 1038

DECISION AND REASONS FOR DECISION [2001] AATA 1038

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/607
GENERAL ADMINISTRATIVE DIVISION
  Re:         IAN BOUNDY
  Applicant

And:HEALTH INSURANCE                   COMMISSION

Respondent

DECISION

Tribunal:B.H. Pascoe, Senior Member

P.J. Lindsay, Senior Member

A. Argent, Member

Date:             21 December 2001  
Place:            Melbourne
Decision:       The Tribunal affirms the decision under review.

……………………………………..
  Senior Member

CHILDCARE REBATE – registered carer's eligibility for rebate- registered carer an individual- Childcare Rebate Act 1993 (Cth), ss 32, 36, 49, 50, 53, 55, 56, 58.
Childcare Rebate Act 1993

REASONS FOR DECISION

21 December 2001   B.H. Pascoe, Senior Member

1. The applicant, Mr Ian Boundy, has applied for review of a decision of the respondent not to pay childcare rebate to his wife, Ms Anne Boundy, who is a registered carer under the Childcare Rebate Act 1993 (the Act).

2. At the hearing, the applicant appeared in person and the respondent was represented by Ms Rachel Martin, a Senior Legal Adviser of the respondent.

3. The documents lodged pursuant to section 37 of the Administrative Appeals TribunalAct 1975 ("T documents") were received into evidence.  Mr Boundy gave oral evidence and, in addition, he gave the Tribunal extracts from the December 1998 report on Child Care Funding prepared by the Senate Community Affairs Reference Committee and from speeches made during the second reading debate of the Childcare Rebate Bill in the House of Representatives.
   ISSUE

4. The issue in this case is whether childcare rebate is payable where a registered carer provides child care to her own children.

BACKGROUND

1. The facts are not in dispute and the Tribunal makes the findings of fact set out below.

2. The applicant's wife, Ms Anne Boundy owns and operates the Surrey Hills Child Care Centre (the Centre) for long day care as a sole trader.  Ms. Boundy's application for registration as a carer indicated that she operated her child care service as an individual, and not as a body corporate, a community organisation or in partnership.  Ms. Boundy's application was approved and she was registered as a carer under the Act by the respondent from 1 March 1999 [T 10]. Two dependent children of the applicant and his wife have attended the Centre on a full time basis at relevant times.  Up to 41 children may be cared for at the Centre which is staffed by 6 to 8 employees.

1. On 28 December 2000 Ms Boundy made a claim for childcare rebate to the respondent.  The claim related to costs incurred in respect of child care provided to her two children and covered the period 1 December 1998 to 22 December 2000.   Lodged with the claim were receipts issued by the Centre to the applicant.

1. The respondent's letter of 23 February 2001 informed the applicant that the claim had not been paid because registered carers are not eligible for the rebate for child care provided to their dependent children.  The applicant asked for the claim to be reconsidered.  

2. By letter dated 8 March 2001 the respondent refused the claim. Again the applicant requested that the claim be reconsidered.  The respondent confirmed the decision.
   LEGISLATIVE FRAMEWORK

3. Section 49 of the Act deals with registration of carers and provides

   (1) A person or body may apply in writing to the Commission for registration as a carer.
   (2) The application must be in the approved form.
   (3) The Commission must register the applicant if and only if it is satisfied that the applicant is eligible for registration. …

Applicants for registration as carers complete a form that notes that the applicant " … is the person or body providing the childcare service." Ms Boundy applied for registration as an individual on the approved form required by section 49.

1. Section 50, which is about eligibility for registration, makes clear that it must be the applicant for registration who provides the child care and that the child care so provided, complies with relevant State and Commonwealth law.

   (1) Subject to subsection (2), an applicant is eligible for registration if:

   (a) the applicant is providing, or intends within a reasonable time after making the application to provide, child care to children other than:

   (i) the applicant's own dependent children; and

   (ii) if the applicant has a partner or a business partner—dependent children of the partner or business partner; and

   (b) provision of the child care complies, or (if the child care is not being provided at the time the application is made) will comply, with any requirements imposed on the provision of the child care by a law of the Commonwealth or a State or Territory relating to child care; and
   (c) in the case of an individual—the applicant has turned 18 or has a qualification of a kind to which a determination under subsection (1A) applies; and
   (d) in the case of a body corporate—the applicant's powers extend to providing the child care that is being, or (if the child care is not being provided at the time the application is made) is intended to be provided.

   (1A) The Minister may make a written determination that an applicant who has not turned 18 must have a qualification of a kind specified in the determination.
   (1B) Determinations made under subsection (1A) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

2. Claims for payment of the rebate are dealt with in section 32 of the Act:

   (1) A parental member of a registered family may lodge with the Commission a claim for childcare rebate in respect of amounts that any parental member of the family has paid to one or more registered carers for providing child care to dependent children who are members of the family.
   (2) The claim may relate to expenses incurred in respect of a period of one or more weeks.
   (3) The claim must not relate to childcare in respect of which the childcare rebate is not payable because of section 36. …

3. Section 36 in Part 4 of the Act directs that childcare rebate not be paid in certain circumstances. Relevantly it provides

(1) Childcare rebate is not payable in respect of a claim if: …

(c) the claim relates to child care provided by a registered carer to:
          (i) the registered carer's own dependent children; or

(ii) if the registered carer has a partner or a business partner – dependent children of the partner or business partner; or…

1. The applicant seeks review of the respondent's decision of 8 March 2001. The Tribunal's jurisdiction is found in section 58 of the Act which states

   Applications may be made to the AAT for a review of a reviewable decision if the Commission has confirmed or varied the decision under section 56.

Section 53 provides:

The following decisions are reviewable decisions for the purposes of this Act: …

(f) a decision under Part 4 that childcare rebate is not payable in respect of a claim; …

CONSIDERATION

1. The claim for childcare rebate dated 28 December 2000 was signed by the applicant's wife, Anne Boundy, as claimant.  

2. The respondent argues that childcare rebate is not payable since the claim relates to child care provided by a registered carer, Ms Boundy, to her own dependent children. The respondent's decision is founded upon Section 36(1)(c) which directs that childcare rebate not be paid where the claim relates to care provided by a registered carer to the registered carer's own dependent children or to dependent children of the registered carer's partner or business partner.

1. At the Hearing the applicant submitted that Ms Boundy did not provide child care to her dependent children.  Instead, he submitted, his wife's Centre provided child care for their dependent children.  He pointed to the fact, which was not disputed, that his wife did very little by way of looking after the children and that as the owner, her duties were mainly administrative. 

2. The Tribunal is satisfied that where a person being an individual applies for and is granted registration as a carer, for the purposes of the Act that individual will be taken to be providing the child care.

1. Regardless of the actual work performed by Ms Boundy herself at the Centre, the Tribunal considers that, where an individual is a registered carer, childcare is provided by that individual. This is the case whether or not the individual engages employees or other agents to assist. Accordingly, the Tribunal finds that pursuant to section 36(1)(c) of the Act childcare rebate is not payable in respect of Ms. Boundy's claim.

Decision

1. For the reasons given above, the decision is affirmed.

I certify that the twenty (20) preceding paragraphs are a true copy of the reasons for the decision herein of 
  B.H.Pascoe
  Senior Member

Signed:         Rhona Hammond
  Personal Assistant

Date/s of Hearing  7 December 2001
Date of Decision  21 December 2001
Solicitor for the Applicant         Self Represented
Solicitor for the Respondent    Ms Martin, Departmental Legal Adviser