Falconer and Secretary, Department of Education (Social security second review)

[2025] ARTA 587

Falconer and Secretary, Department of Education (Social security second review) [2025] ARTA 587 (14 May 2025)

Applicant:Falconer

Respondent:  Secretary, Department of Education

Tribunal Number:                2024/3235

Tribunal:Senior Member J Longo (second review)

Place:Melbourne

Date:14 May 2025

Decision:The Tribunal affirms the decision under review.

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Senior Member J Longo

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 161(1B)–161(1C) of the A New Tax System (Family Assistance) (Administration) Act 1999.

Catchwords

Child Care Subsidy – entitlement to child care subsidy – whether applicant made a valid application – where applicant cancelled previous application for child care subsidy – requirements under the Act not met – date of effect of decision – decision under review affirmed

Legislation

A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Statement of Reasons

BACKGROUND

1. This application is about the earliest date to which the Applicant is entitled to child care subsidy in relation to her child.

2. On 7 July 2023, Services Australia – Centrelink (Centrelink) determined the Applicant was eligible for child care subsidy from 29 May 2023.[1]

   [1] [T11] page 202.

3. The Applicant sought review of the decision to grant child care subsidy from 29 May 2023 and requested payment from an earlier date. On 22 November 2023, an authorised review officer reviewed and affirmed the decision. On the same date, the Applicant lodged an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT) for review of the decision. On 4 April 2024 the AAT affirmed the decision. On 7 June 2024, the Applicant applied for second review of the AAT decision.

4. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal).[2]

   [2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

5. I conducted a hearing on 14 April 2024. The Applicant, the Applicant’s husband and the Respondent’s representative spoke to me via conference telephone. In reviewing this matter, I had before me before the documents provided by the Respondent and the Secretary’s Statement of Facts, Issues and Contentions. The Applicant and her husband confirmed at hearing that they had also received these documents.

   CONSIDERATION

6. The legislative provisions relevant to this application for review are found in the A New Tax System (Family Assistance) Act 1999 (the Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).

7. Section 67BB of the Administration Act requires a person to lodge a claim for child care subsidy. Section 67BE of the Administration Act sets out the requirements for an effective claim. If a claim is not effective, section 67BF of the Administration Act deems that the claim is taken not be made. Subsection 67CC(4) of the Administration Act provides that the start date of a successful claim is the first Monday of a “CCS fortnight”[3] that is not more than 28 days before the date on which it was lodged.

   [3] A CCS fortnight is defined under section 3 of the Act.

8. Many of the matters in this application are not in dispute. I accept, and it is not in dispute, that the Applicant was granted child care subsidy from 29 May 2023 on the basis of the claim lodged with the Agency on 23 June 2023.

9. The Applicant and her husband stated that they believed the child care subsidy for their child should be backdated to 14 March 2023 because this is when their daughter started child care. The Applicant’s husband explained to me that they had started a claim on 24 February 2023.

10. He stated that he spoke to an employee of the Agency around the time of starting the claim form in February 2023, who advised him not to lodge if they were unsure of their estimate was not correct they would either have repay child care subsidy or be owed arrears of child care subsidy which would have required further interaction with the Agency to resolve. They followed this information and decided to not lodge the claim until their financial information for the previous year was completed and the claim commenced on 24 February 2023 was cancelled. He stated that because of the complicated family tax structures and the fact that their accountant[4] being unable to complete both the personal and entity tax returns by the date of the claim, they did not proceed with the application. On 23 June 2023, they lodged a claim for child care subsidy.   

    [4] [T6].

11. The Applicant and her husband assumed that the claim would be backdated to the date their daughter started child care when they made a claim. They could not recall being told that the delay would have an effect on the date from which the child care subsidy would be paid. They feel like they have been punished for wanting to do the right thing and trying to provide as accurate an estimate as possible for the assessment of the entitlement to child care subsidy. They did not want to provide an estimate that potentially was too low and inaccurate which then would have required them to report again, with all the difficulties associated with doing this and wanted to get it right. As stated in the Applicant’s application for review, they would have applied earlier if not for the incorrect information and guidance they received from the Agency’s employees.

12. The Applicant and her husband acknowledged that the claim was not lodged in time for child care subsidy to be paid from 14 March 2023, and that the claim was made more than four weeks from the date that the Agency could go back, but this was done on the instruction from the Agency but feel nonetheless that they should be eligible for the child care subsidy from 14 March 2023, from the date they intended to claim for child care subsidy.

13. I am sympathetic to these factors and the reasons which led to the claim being lodged on 23 June 2023 as opposed to at the earlier date. However, there is no discretion in the legislation to backdate child care subsidy prior to the first Monday of the child care subsidy fortnight within 28 days prior to the claim being made. The Tribunal acknowledges all of the matters that impacted the Applicant receiving child care subsidy earlier; however, it is not able to take into these into account.

14. Accordingly, the Tribunal has determined that the earliest date from which the Applicant’s claim for child care subsidy can be granted is 29 May 2023, being the earliest date this type of subsidy is able to be paid, namely the first Monday of the child care subsidy fortnight in the 28-day period prior to the date of claim. As I have reached the same decision as the Agency, it follows that the decision under review must be affirmed.

15. I acknowledge the Applicant and her husband’s believe that they were incorrectly advised by the Agency and that they were not advised of the need to lodge a claim to be paid from the earliest date possible. It was clear in the Applicant’s and her husband’s evidence and their circumstances that the delay was to ensure as accurate an amount of information was provided to the Agency for the rate of child care subsidy to be determined and to avoid overpayment or underpayment. It is clear that they wanted to be as accurate as possible in the claim but these reasons for the delay in lodging the claim, however, do not establish a basis for the Applicant’s child care subsidy claim to be backdated prior to the 29 May 2023 under the legislation.

16. I note that the Applicant has asked the Agency to consider a claim under the Compensation for Detriment caused by Defective Administration (CDDA) Scheme based on their circumstances, which has been refused. While I cannot determine such a claim, is open to the Applicant to refer a CDDA claim to the Commonwealth Ombudsman for further consideration and recommendation, but such a process is separate to this review.

    DECISION

17. The decision under review is affirmed.

Date(s) of hearing:  

14 April 2025

Applicant:

Falconer (By Microsoft Teams)

Representative for Applicant:

Representative for Respondent:

Applicant’s husband (By Microsoft Teams)

Michelle Chiu from Services Australia (By Microsoft Teams)