Darren Larcombe and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 648
•26 July 2012
[2012] AATA 648
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0818
Re
Darren Larcombe
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 26 July 2012 Date of written reasons 25 September 2012 Place Melbourne For the reasons given orally at the hearing, the Tribunal affirms the decision under review.
.............................[sgd]...........................................
Regina Perton, Member
Catchwords – Family Assistance – child care benefit – fee reduction for care of child at risk – decision affirmed
Legislation
A New Tax System (Family Assistance) Act 1999 sections 47, 77, 78, 81,
A New Tax System (Family Assistance) (Administration) Act 1999 sections 50F, 50G
Child Care Benefit (Rates and Hardship) Determination 2000 clauses 4, 8
Family Assistance Guide paragraph 2.6.7
REASONS FOR DECISION
The Tribunal provided oral reasons for its decision at the hearing of this application on 26 July 2012. The applicant subsequently requested written reasons for the decision. The reasons for the Tribunal’s decision are set out below.
Daniel Larcombe is the father of three young children. His partner, Marina Medved, is the primary carer of the children. Ms Medved suffered injuries in a bicycle accident which have affected her physical ability to care for her children. Upon application by a registered child care provider on Mr Larcombe’s behalf, the family was able to access reduced fee childcare for 13 weeks in the 2010/2011 financial year and then in the 2011/2012 financial year. This application to the Tribunal arises because the family was unable to obtain further reduced fee childcare following an application for the period from 17 October 2011 to 15 January 2012.
Centrelink administers special child care benefit (SCCB) on behalf of the respondent. SCCB is available in limited circumstances including where a child is at risk of serious abuse or neglect or where there is a specified hardship event which reduces a parent’s ability to pay child care fees. A child care provider can apply once in a financial year on behalf of eligible parents. However, a second application in a particular financial year is referred to the respondent for decision. The respondent is required to follow legislative and policy guidelines in determining eligibility for SCCB.
On 6 October 2011 a claim for SCCB was made for the period 17 October 2011 to 15 January 2012. Centrelink rejected the claim on 17 October 2011. Further documentation was provided during October 2011 resulted in the same response from Centrelink. On 8 November 2011 internal review was sought from an authorised review officer (ARO) of Centrelink. On 1 December 2011 the ARO affirmed the original decision. On 19 December 2011 an application for review was lodged with the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the decision on 9 February 2012. On 28 February 2012 the application for review under consideration was lodged with this Tribunal.
Ms Medved, who is representing her husband, submits that her children were at risk because of her health and that the family should therefore have had access to reduced fee child care. The respondent disagrees stating that the family’s situation, while difficult, does not meet the statutory requirements for that assistance.
The issue for the Tribunal is whether SCCB should have been provided for the period from 17 October 2011 to 15 January 2012.
RELEVANT LEGISLATION
Division 4 of A New Tax System (Family Assistance) Act 1999 (the Act) sets out the eligibility for child care benefit. Section 47 of the Act states:
47 When an approved child care service is eligible for child care benefit by fee reduction for care provided to a child at risk
(1) An approved child care service is eligible for child care benefit by fee reduction for a session of care provided by the service to a child if:
(a) at the time the care is provided, the service believes the child is at risk of serious abuse or neglect; and
(b) the care is provided in Australia.
…
Sections 77 and 78 of the Act limit the amount of time that an approved child care service can provide fee reductions in relation to a particular child it certifies as eligible for 13 weeks at a time and only once in a financial year.
Section 81 of the Act sets out the matters that the respondent must take into account in determining whether there is eligibility for a further period of SCCB in a financial year when there has already been a period of 13 weeks of subsidy in that period:
81 Fee reductions or child care benefit rate determined by the Secretary
Overview of section
(1) This section provides for the rate applicable to:
(a) an individual in respect of whom a determination of conditional eligibility under section 50F of the Family Assistance Administration Act is in force; or
(b) an approved child care service that is eligible under section 47 for child care benefit by fee reduction for sessions of care provided by the service to a child at risk;
if the Secretary makes a determination as provided for in this section.
Secretary may determine rate in cases of hardship—individual conditionally eligible
(2) If:
(a) a determination of conditional eligibility under section 50F of the Family Assistance Administration Act is in force in respect of an individual and a child for child care benefit by fee reduction for care provided by an approved child care service to the child; and
(b) either:
(i) the total period specified in certificates given by the service under section 76 and certificates given under subsection 76(1) for a reason set out in subparagraph 76(1)(b)(ii) (hardship) by any other approved child care service, in respect of the child in the same financial year equals 13 weeks; or
(ii) the service is not able to give a certificate under subsection 76(1) because of the operation of section 79 or 80; and
(c) the Secretary is satisfied that the individual is experiencing hardship of a kind specified in an instrument in force under paragraph 82(3)(a); and
(d) the individual applies to the Secretary under subsection (5);
the Secretary may determine the hourly rate of fee reductions for sessions of care the service provides to the child and the period for which the rate applies.
Secretary may determine rate if child at risk and individual conditionally eligible
(3) If:
(a) a determination of conditional eligibility under section 50F of the Family Assistance Administration Act is in force in respect of an individual and a child for child care benefit by fee reduction for care provided by an approved child care service to the child; and
(b) the service either:
(i) has given a certificate under section 76 such that the total period specified in that certificate and other certificates (if any) given by the service under that section in respect of the child in the same financial year equals 13 weeks; or
(ii) is not able to give a certificate under subsection 76(1) because of the operation of section 79; and
(c) the Secretary is satisfied that the child is at risk of serious abuse or neglect; and
(d) the service applies to the Secretary under subsection (5);
the Secretary may determine the hourly rate of fee reductions for sessions of care the service provides to the child and the period for which the rate applies.
Secretary must determine rate if service eligible and child at risk
(4) If:
(a) an approved child care service is eligible under section 47 for child care benefit by fee reduction for sessions of care provided by the service to a child at risk; and
(b) the service either:
(i) has given a certificate under section 76 such that the total period specified in that certificate and other certificates (if any) given by the service under that section in respect of the child in the same financial year equals 13 weeks; or
(ii) is not able to give a certificate under subsection 76(2) because of the operation of section 79; and
(c) the Secretary is satisfied that the child is at risk of serious abuse or neglect; and
(d) the service applies to the Secretary under subsection (5);
the Secretary must determine the hourly rate of child care benefit for sessions of care the service provides to the child and the period for which the rate applies.
Sections 50F of A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act) cited in section 81 of the Act above states:
50F Determination of conditional eligibility
If the Secretary is satisfied that the claimant, at the time the Secretary makes the determination, is conditionally eligible under section 42 of the Family Assistance Act in respect of the child, the Secretary must determine that the claimant is conditionally eligible for child care benefit by fee reduction in respect of the child.
Section 50G of the Administration Act states:
50G Determination that no entitlement
If the Secretary is not satisfied that the claimant is, at the time the Secretary makes the determination, conditionally eligible under section 42 of the Family Assistance Act in respect of the child, the Secretary must determine that the claimant is not entitled to be paid child care benefit by fee reduction in respect of the child.
SCCB is also available on the basis of hardship. The circumstances in which SCCB can be paid on that basis are set out in a determination that the Secretary has made. The Child Care Benefit (Rates and Hardship) Determination 2000 (the Determination) describes the kinds of hardship that may be taken into account:
4 Kinds of hardship
(1) When a person experiences an event which substantially reduces his or her ability to pay child care fees, this is a specified kind of hardship for the purposes of subparagraph 76 (1) (b) (ii) and paragraph 81 (2) (c) of the Act.
(2) The event referred to in subsection (1) may include, but is not limited to:
(a) loss of employment or the failure of a business;
(b) destruction of, or severe damage to, a person’s home, necessitating relocation of the family or the need to place a child in care or to increase child care;
(c) significant additional expenditure or a significant reduction in income arising from an event such as a death or serious illness in the family.
(3) Subject to subsection 4 (4), when a person has ceased to receive an income support payment and as a consequence:
(a) the person incurs significant additional expenditure associated with commencing new employment; or
(b) the person experiences a significant reduction in income.
this is a specified kind of hardship for the purposes of subparagraph 76 (1) (b) (ii) and paragraph 81 (2) (c) of the Act.
(3) Subsection 4 (3) does not apply in a case where a person has ceased to receive an income support payment because of the application of an assets test.
(4) For the avoidance of doubt, for the purposes of subparagraph 76 (1) (b) (ii) and paragraph 81 (2) (c) of the Act, kinds of hardship do not include hardship arising from:
(a) foreseeable expenditure such as routine home repairs or maintenance;
(b) non-essential expenditure such as home improvements;
(c) ongoing low income;
(d) an increase in fees charged by an approved child care service.
Clause 8 of the Determination further limits the Secretary’s power to declare a person’s circumstances as one of hardship for the purposes of SCCB:
8 Further limit relating to Secretary’s hardship determinations
(1) In considering the period to be specified in a hardship determination under subsection 81 (2) of the Act, the Secretary must consider how long the person in respect of whom the determination is made reasonably needs to recover from or adjust to the hardship event.
(2) For the purposes of subsection (1):
(a) recovery from or adjustment to a hardship event means adaptation to the person’s new circumstances, and does not mean a return to the circumstances that existed before the hardship event occurred; and
(b) the Secretary must consider all the person’s circumstances, including his or her ability to reduce other items of household expenditure in order to pay child care fees, and whether the general expenditure of the person is reasonable having regard to the level of housing and other costs in the area in which the person lives.
The respondent has prepared a Family Assistance Guide (the Guide) which provides guidance to the legislation and determinations. At 2.6.7 the Guide indicates that SCCB is available if at a child is believed to be at risk of serious abuse or neglect at the time for which SCCB is sought.
DO MR LARCOMBE’S AND MS MEDVED’S CIRCUMSTANCES MEET LEGISLATIVE REQUIREMENTS?
In oral and written evidence before the Tribunal, Ms Medved described the difficulties she and her husband had experienced in looking after their three preschool children. She told the Tribunal about her physical difficulties which arose as a result of bicycle accidents that had affected her arms and her knee. She will require surgery for her knee which she has put off due to the need to care for the children. She has been advised to undertake certain exercises to strengthen her knee before surgery but has not had the time or capacity to do them. She has adjusted how she handles the youngest child due to her wrist problems. Her husband has changed jobs and adjusts his hours as much as possible to assist her but his job would be at risk if he took even more time off.
The physical difficulties she had experienced at the time the application under review was made (i.e. 17 October 2011 to 15 January 2012) have not cleared up. Because of the children’s needs, she finds herself unable to attend medical appointments in relation to her knee or undertake the prescribed exercises.
As indicated earlier, this application for review concerns SCCB for the period from 17 October 2011 to 15 January 2012 as it was the second application for the financial year 2011/2012. Around the time of the application for SCCB Centrelink received letters of support for the application from Ms Medved’s general practitioner and from her husband’s treating psychologist.
Dr Suren Haripersad provided unaddressed statements dated 20 September 2011 and 20 October 2011. The latter statement is the more comprehensive of the two:
…
Marina is married to Darren and they have three young children.
Marina has no family support to help her care for her kids.
Marina has torn ligaments on her left & right joints and injured her knee in an accident. Her injuries limit her ability to do physical work required in caring for her children. She has difficulty lifting children(eg cost, change mat on the floor& high chair) due to the torn ligaments in her wrist.
She requires assistance when she gets up from a kneeling and sitting position and often needs her husband Darren to take time off work to assist her at home.
She is currently seeing a physiotherapist and orthopaedic surgeon at Western Health.
In general, due to her injuries, Marina requires to have repeated rest breaks in order to continue with her parental and household duties and often is unable to complete her tasks.
Darren has depression and is receiving counselling and CBT from a clinical psychologist.
This family requires assistance in helping them care for their children.
Dr Anne Woodward, psychologist, in a reference addressed to Centrelink dated 20 October 2011, stated:
I am writing in support of Darren Larcombe’s application for support to their family. He is seeing me for psychological counselling because he is struggling to cope with family demands. His wife, Marina, apparently had a bicycle accident and tore ligaments in both hands and has a sore kneecap. This occurred while she was pregnant with their youngest son. Darren and Marina have three boys: River who is five months old, Tyler who is 2 and Jonah who is nearly 4. The boys are all very poor sleepers and the parents have no family support. Marina struggles to handle the boys physically and is very stressed. Darren's capacity to work is being compromised. At times he has to come home from work because she is just not coping. He is also very stressed. Having someone to assist with caring for the young sons would be of enormous support.
The application was rejected on 24 October 2011 on the basis that:
All evidence relates to parents nothing to show children at risk of serious abuse or neglect.
Further material was provided to Centrelink following that rejection. In a statement dated 7 November 2011, Anna Lucia, social worker at Sunshine Hospital stated:
…
Marina Medved…. delivered her 3rd child on 10th May 2011 at Sunshine Hospital and I provided her with support during her pregnancy and to post delivery.
Marina had a pre existing injury prior to her pregnancy resulting from a fall. She had to delay treatment to this due to the pregnancy and risks to the baby if she had x-rays and MRI’s. She has since had to commence treatment including regular physiotherapy to assist to heal the injury. Marina reports that she has no extended family or supports in Australia. Her husband works full time and recently started a new job so unable to take time off work. She has 3 children less than 4 years of age. Marina's husband has recently been diagnosed with severe depression and his undertaking therapy for this. Due to his own mental health issues he is a very limited support to her
Marina has been unable to access the necessary medical treatment required due to the lack of support that she hands and having to care for her three children. Due to the nature of her injury she is finding it increasingly difficult to care for her children and urgently requires increased supports. Due to her physical limitations and lack of support she is also at increased risk of developing postnatal depression.
It is in my opinion that these children will be at risk of harm if their mother does not receive increased support to allow her to access the necessary medical care that she requires. She is clearly concerned about the impact her injury is having on her ability to care adequately for the children. I would like to strongly support an application for Special Child Care Benefit for a nanny service for 1 day a week for the next 13 weeks so that Marina can attend the necessary appointments
…
On 27 October 2011 Ms Medved provided a statutory declaration in which she provided similar information to that described above. She indicated that she has three very small children, no family support available, and that her husband is their only source of income. She is indicated that their priority was that he does not lose his job and that he cannot take more time off work for family needs. She went on to state:
… 5) I suffer from accident related injuries. I’m seeing specialists to help me manage related physical restrictions& pain. To keep on functioning I must find time to attend my appointments & exercises as prescribed. I have 4 doctors appointments next week and no-one to leave my sons with. I have to choose either to compromise my sons’ wellbeing or my own health as I can't leave them alone.
6) My sons are 4 years old & younger, and unable to look after themselves. I have to do everything for them. Often my own primary physiological needs, due to lack of time, conflict the needs of my children. My elders are bad sleepers. I also get up to feed & change my baby at night without any rest & support. I’m physically & emotionally exhausted to the point I can't cope any longer.
At the moment everything is simply out of control, putting the well-being of my children at risk.
On 29 November 2011 the ARO spoke to Ms Lucia specifically asking if the children were at risk of serious abuse or neglect. Ms Lucia is recorded as stating that although the circumstances are difficult and complicated she did not consider the children were at risk of serious abuse or neglect at that time. Ms Lucia said that she has not referred the case to DHS as she considered the children to be at a stage before this. However she said that without help they could be at risk in the future.
The ARO provided the following record of his conversation with Ms Medved:
Partner rang she advised husband can not talk during working hours I advised conversation with Anna… partner advised that she did not want DHS involved with the care of her children and as such she would not confirm that children were at risk of serious abuse or neglect. Although she advises children were not always fed on time and that the children's nappies were not changed on a regular basis. I asked if she had discussed these matters with Anna she advised yes but she does not want DHS telling her what to do in her own home. I advised if no one was confirming risk of serious abuse or neglect at this time SCCB would not be paid. I advised I would still like to talk to partner as he made the claim….
…
... Partner advised she would obtain a letter from Western Health that SCCB would prevent the children ever becoming at risk of serious abuse or neglect. I advise that I was happy to consider if she provided however SCCB is paid in regards to a child at risk and this would need to be established….
Ms Medved provided a statement to the SSAT after the ARO’s rejection after receiving a copy of the pertinent Centrelink file. Amongst other things, she provided responses to the ARO’s comments. Ms Medved stated:
…I advised …[the ARO] that I could not always cope and gave her examples which she mentions…in her notes (such as not feeding children on time). …[The ARO] said she believed it was not a big deal if children ate later. I explained to her that with small children and infants timing and routine was very important as well as preparation of their suitable for their age meals.
With regards to DHS involvement, …[the ARO] said she would have to report me to DHS because I told her I neglected my children. To which I replied that I did not state that, I only tried to explain her why they were at risk of unintentional neglect. …[The ARO] said that DHS would need to step in, put some strategy in place and possibly, even take our children away from us. To which I replied that I did not want this to happen and that my strategy was to apply to SCCB and have a childcare professional who would help to change nappies and rock a baby while I'm making meals and feed older children.
Ms Medved went on to describe her health issues and how she was neglecting her own needs because of her inability to have someone else assist her with the children. As well as her post accident injuries she also has issues with her throat and nose. She finished by stating that she applied for SCCB because she wanted to eliminate the risk of her children having a very sick mother who cannot look after them.
Records on the departmental file indicate that the two older children did receive some child care during the relevant period with reduced fees but not at the level of SCCB fees.
The SSAT, in its decision dated 9 February 2012, provided a summary of the evidence Ms Medved gave. She provided descriptions of her health and that of the children. The SSAT reported that the children all enjoy good health although the eldest had broken his arm and would not be attending 4 year old kindergarten until his cast came off. The children were up to date with their vaccinations. The eldest had just had his 4 year old check up at the maternal health centre and was developing well. The two other children were also developing well. Ms Medved indicated to the SSAT that she has done her best to ensure the children haven't suffered because of her health problems. She stated that she has not been as active with them as she would like to have been. Her husband was improving and happier in his new job.
In a written statement provided to the Tribunal dated 23 June 2012, Ms Medved stated that her health has worsened since January. She has now been advised that she will need surgery on both knees, one at a time. She indicated that she is not coping well with juggling her children's schedules and requires additional assistance from her husband. He has now arranged to work fewer hours to help at home but this has impacted on them financially.
Anne Ingram, social worker at Sunshine Hospital, provided a written statement dated 18 June 2012. She stated that Ms Medved would require a seven-week period of recuperation after knee surgery which she has been putting off due to her inability to care for her children during the recovery. Ms Ingram stated that Ms Medved requested that her application be approved so that she could be considered for SCCB.
The SSAT provided a useful description of Ms Medved’s circumstances with which this Tribunal agrees:
Ms Medved’s evidence presents a compelling picture of the stresses the family unit is under as a result of her injuries, inability to access appropriate medical attention as frequently she requires it and Mr Larcombe’s depression. However, despite these manifold difficulties, there was no evidence that the children had suffered or were at risk of suffering neglect and abuse. It is a credit to both Ms Medved and Mr Larcombe that all three children are developing normally, as attested by Ms Medved in her oral evidence, and are up to date with their vaccinations and maternal health centre checks. The Tribunal considered that the maternal health centre staff would have picked up any signs of the children being at risk of abuse or neglect, but there was no evidence before the Tribunal of that…. Put simply, the tribunal is unable to discern any evidence that the children being at risk of neglect or abuse. This is undoubtedly a consequence of Ms Medved’s commitment to parenting and is to be commended….
The Tribunal is sympathetic to Mr Larcombe’s and Ms Medved’s plight. However, it is not satisfied that their children are at risk of neglect or abuse. The term children at risk is not defined in the legislation. However, the term is commonly used to refer to children who are at risk of serious abuse or neglect. The Tribunal, while not bound to follow the respondent’s guidelines, believes it appropriate to do so in this instance as it agrees that this is how the term is generally used.
The Tribunal is not satisfied that at the date of application on 6 October 2011 or during the relevant period between 17 October 2011 and 25 January 2012 that the children could have been described as at risk. There was no application under the hardship provisions which is only available in prescribed circumstances described earlier in these Reasons for Decision.
Ms Medved has expressed concern about how she will cope when she has her knee operations and hopes she may be eligible for SCCB at that time. As the Tribunal pointed out during the hearing, the application under review concerned only her partner’s eligibility last financial year when they were applying for a second 13 week period in a financial year where they had already had assistance. Any fresh application would be in terms of the family’s situation at that particular time, probably more appropriately under the hardship provisions although the Tribunal notes the narrowness of the Determination.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision of ...........................[sgd].............................................
Associate
Dated 25 September 2012
Date of hearing 26 July 2012 Advocate for the Applicant Ms Marine Medved, his partner Advocate for the Respondent Mr Andrew Carson Solicitors for the Respondent DHS Legal Services
0
0