GJTM and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 616

GJTM and Secretary, Department of Social Services (Social security second review) [2025] ARTA 616 (26 May 2025)
Applicant/s:  GJTM
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2024/1118

Tribunal:Senior Member T Simon
Place:Sydney
Date:26 May 2025

Decision:1. The Tribunal affirms the decision made on 28 November 2022 to reject the applicant’s claim for carer allowance.
2. Pursuant to section 70 of the Administrative Review Tribunal Act 2024, the disclosure of the applicant’s name, the other party’s name and other identifying details are prohibited for the purposes of publication.
Note: The Tribunal is prohibited in certain types of matters from disclosing certain identifiers when publishing reasons for decision. The above order has been made to comply with that requirement.

Statement made on 26 May 2025 at 4:24pm
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 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
SOCIAL SECURITY – Carer allowance – dependent child –– decision under review affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1)Act 2024
Administrative Review Tribunal Act2024
Social Security Act 1991
Social Security (Administration) Act 1999
Statement of Reasons

This is second review of a decision made to reject the applicant’s claim for carer allowance. The claim was rejected on 28 November 2022 on the basis that the applicant did not meet the daily care requirement. On 18 January 2023 an authorised review officer of Services Australia – Centrelink (Centrelink) affirmed that decision. The applicant subsequently applied to the former Administrative Appeals Tribunal for first review of the decision and on 31 January 2024, the Tribunal also affirmed the decision to reject the applicant’s carer allowance. On 22 February 2024, the applicant made this application for second review of the decision.
From 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal and under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the Administrative Appeals Tribunal that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal.
Pursuant to s 131D of the Administrative Review Tribunal Act2024 (‘ART Act’) a person whose interests are affected by an ART social services decision may apply to the Tribunal for second review of the decision. An ART social services decision includes an eligible social services decision which has been affirmed by the Tribunal.[1] An eligible social services decision includes a decision made under the Social Security Act.[2]
[1] ART Act s 131D(3)(a).
[2] Ibid s 131C(g).
The decision made by the Tribunal on 22 February 2024 is an eligible social services decision and the applicant’s interest are affected by the decision.
The applicant appeared at the hearing by video link together with her mother and they both gave evidence. The respondent was legally represented. The respondent had provided a bundle of documents (Centrelink documents) made up of 173 pages which they relied on. The applicant also relied on a series of documents which have been referred to on the hearing file index as A1-A7. The applicant’s mother noted at the hearing that they had recently moved and did not have the documents before them. However, they stated they were ready to proceed, and the Tribunal relevantly placed the documents on the screen when necessary for the applicant to address them.
Having considered the evidence and submissions of the parties the Tribunal has decided to affirm the decision to reject the applicant’s claim for carer allowance.
The Reviewable Decision
The applicant made an application for carer allowance and carer payment on 17 October 2022.[3] Her date of birth is noted and indicates she was 15 years of age at the time of the carer application. The carer application was in relation to her younger brother whose date of birth indicates he was 11 years at the time.
[3] Centrelink documents, pp 53-63.
On 28 October 2022, the applicant lodged a carer allowance medical report with Centrelink signed by a General Practitioner (GP) in relation to her brother.[4] The GP notes that the brother’s primary medical condition is autism spectrum disorder. The GP also notes that the brother requires extra care and attention for 14 hours or more per week.
[4] Centrelink documents, pp 65-76.
In letters dated 28 November 2022,[5] Centrelink rejected the claim for carer allowance on the basis that the applicant did not meet the daily care requirement. Centrelink also rejected the claim for carer payment on the basis that the applicant was not eligible for the payment because the care that she provided did not meet the level of care required for the payment.
[5] Centrelink documents, pp 78-81.
On 29 November 2022, the applicant sought formal review of the decision to reject the carer payment only.[6] The Centrelink records contain a document[7] that notes that on 10 January 2023, a Centrelink representative discussed the applications for formal review with the applicant’s nominee and the nominee informed Centrelink that the review for carer payment could be withdrawn and that the applicant was only seeking review of the application for claim of the carer allowance.
[6] Centrelink documents, pp 82 – 83.
[7] Centrelink documents, p 168.
On 18 January 2023, the applicant was sent the notice[8] of the outcome of the decision regarding the formal review. The applicant was notified that the decision to reject her claim for carer allowance was not changed because to qualify for carer allowance for a child under 16 years of age, a care receiver must be the dependent child of the carer.
[8] Centrelink documents pp 89-92.
In the application[9] for first review by Tribunal, the applicant sought review of the decisions to reject her claim for carer payment and carer allowance. The Tribunal in its decision proceeded to consider whether the applicant qualified for carer allowance.
[9] Centrelink documents, p 96.
The Tribunal notes that at hearing, the applicant referred to provisions relating to carer payment, however as the Tribunal understood it, those references when made were in relation to the claim for care allowance.
In any case, the Tribunal would not have jurisdiction to determine a review relating to carers payment because it is not a reviewable decision. Subsection 142(1) of the Social Security (Administration) Act 1999 requires that an application can be made to the Tribunal for review of a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer. Subsection 142(4) provides:
(4) For the purposes of subsection (1), the decision made by the
Secretary, the Chief Executive Centrelink or the authorised review
. officer is taken to be:
(a) if the Secretary, the Chief Executive Centrelink or the
authorised review officer affirms a decision—that decision as affirmed; and
(b) if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision—that decision as varied; and
(c) if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision—the new decision.
The Tribunal is satisfied that on 10 January 2023 the applicant withdrew her application for formal review of the refusal of the carer payment and there has been no decision made pursuant to subsection 142(4). The refusal of the carer payment is not a reviewable decision.
On that basis that Tribunal is only considering review of the decision to reject the applicant’s claim for carer allowance.
Qualification for Carer allowance
Section 953 of the Social Security Act1991 relevantly sets out the qualification criteria for carer allowance for a single child as follows:
(1) A person is qualified for carer allowance for a disabled child (the
care receiver) if:
(a) the care receiver is a dependent child (disregarding
subsection 5(3)) of the person; and
(b) the care receiver is an Australian resident; and
(d) because of the disability from which the care receiver is
suffering, the care receiver receives care and attention on a
daily basis from:
(i) if the person is a member of a couple—the person, the
person’s partner or the person together with another
person (whether or not the person’s partner); or
(ii) if the person is not a member of a couple—the person or
the person together with another person;
in a private home that is the residence of the person and the
care receiver; and
(e) either of the following applies:
(i) the disability from which the care receiver is suffering is
declared, under subsection 38E(3), to be a recognised
disability for the purposes of this section;
(ii) the person has been given a qualifying rating of intense
under the Disability Care Load Assessment (Child)
Determination for caring for the care receiver; and
(f) the person is an Australian resident; and
(g) the person satisfies the carer allowance income test under
section 957A.
Dependent Child
A dependent child under 16 is defined in subsection 5(2) of the Social Security Act as:
(2) Subject to subsections (3) and (6) to (8)1, a young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if:
(a) the adult is legally responsible (whether alone or jointly with another person) for the day-to-day care, welfare and development of the young person, and the young person is in the adult's care; or
(b) the young person:
(i) is not a dependent child of someone else under paragraph (a) or (aa); and
(ii) is wholly or substantially in the adult's care.
On the claim form, the applicant recorded that that she had no children under 18 in her care. She also recorded that her brother was not a dependent child and that she was not the legal guardian of her brother. At hearing, the applicant again confirmed that she did not have any dependent children under 18 years of age and that she was not the legal guardian for her brother. At the hearing the applicant’s mother confirmed that she was legally responsible for the applicant’s brother.
Section 953 of the Social Security Act provides a cumulative set of criteria which is required to qualify for carer allowance. The applicant’s brother is not a dependant of the applicant because she is not legally responsible for his day-today care, welfare and development, his mother is. On that basis the applicant did not qualify for carer allowance as her brother did not meet the definition of dependent child as is required by subsection 5(2) of the Social Security Act. In effect that resolves the issues raised by this review application. However, the applicant has raised other matters which the Tribunal will deal with for completeness.
The applicant’s mother stated at the hearing that her son required a high level of care, and she also had multiple disabilities. The applicant’s mother required the applicant to help with both her mother’s and her brother’s care. The applicant’s mother stated she is very reliant on the applicant and the applicant goes far beyond what an ordinary daughter might do.
The applicant’s mother referred to section 198 of the Social Security Act as being relevant to the qualification for the applicant for carer allowance. The applicant is qualified for carer payment for her mother.[10] The applicant’s mother relies on section 198 (9) of the Social Security Act which relevantly provides:
(9) For the purposes of paragraph (2)(d) and other references in this
Part that relate to that paragraph, if a disabled adult is providing
care of a dependent child of the adult at a particular time and
another person is supervising the provision of that care at that time,
the other person is taken personally to provide care of the adult and
child at that time.
[10] Centrelink documents, p 76.
The applicant’s mother submitted that it then follows that her daughter is deemed to be eligible for carers payment as she supervises her mother’s care of her brother and is eligible to receive carers payment.
Subsection 198 (9) must be read in the context of the entire section. Section 198 is contained in part 2.5 of chapter 2 of the Social Security Act which deals with carer payments. Section 198 sets out the qualifications for carer payment, not for carer allowance. Subsection 198(9) is relevant to the whether a person provides constant care for the purposes of qualification of a carer payment and cannot be applied on its own making it relevant to carer allowance.
Moreover, section 954B of the Social Security Act provides that:
While:
(a) a person is receiving a carer payment for caring for one or more persons (the care receiver or care receivers) other than:
(i) a care receiver referred to in subparagraph 197D(1)(a)(i); or
(ii) a care receiver referred to in paragraph 198(2)(a) or (d); and
(b) the person is not, apart from this section, qualified for carer allowance for the care receiver or care receivers;
the person is qualified for carer allowance for each care receiver.
Note: For the effect of 2 people being qualified for carer allowance for the same care receiver, see sections 964 and 965.
In effect, a person receiving carer payment for caring for a child is also qualified for carer allowance for that child by virtue of section 954B if that person was not qualified by virtue of another provision under the Social Security Act. However, section 954B is not relevant here as the applicant is not receiving carer payment for her brother and that claim was rejected.
Similarly, the applicant’s mother also made submissions in the alternative regarding the application of section 197A of the Social Security Act. That section is also contained in Part 2.5 of Chapter 2 of the Social Security Act and is only relevant to qualifications for carer payment and is not relevant to qualifications for carer allowance.
The applicant’s mother had also made submissions regarding section 981 of the Social Security Act. At hearing she stated that those submissions were no longer pressed. The Tribunal notes that section 981 deals with circumstances in which multiple people qualify for carer allowance. The applicant’s mother is receiving carer allowance for the applicant’s brother. Section 981 provides:
Division 6—Multiple qualification for carer allowance for same care receiver or receivers
981 Secretary may make declaration where 2 people are qualified for carer allowance for the same care receiver or care receivers
(1) If the Secretary is satisfied that 2 people who are not members of the same couple are each qualified for carer allowance for the same care receiver or care receivers, the Secretary is to make a declaration:
(a) stating that the Secretary is satisfied that the 2 people are each qualified for carer allowance for the care receiver or care receivers; and
(b) specifying the share of the carer allowance for the care receiver or care receivers that each of the 2 people is to receive.
(2) If the Secretary makes a declaration under subsection (1), the Secretary is to give each of the 2 people involved notice of the declaration.
Carer allowance can be shared by two people if the qualifications in section 981 are met. The applicant’s mother is presently receiving the total of the carer’s allowance. When the care is provided by a person and another person who is not the person’s partner, each of the carers may qualify for carer allowance but will receive only a share of one carer allowance. On that basis section 981 is not relevant to the circumstances of this case.
In conclusion, the applicant did not qualify for carer allowance and the decision should be affirmed.
DECISION
The Tribunal affirms the decision made on 28 November 2022 to reject the applicant’s claim for carer allowance.

Date(s) of hearing: 29 January 2025

Applicant:

Self-Represented

Solicitors for the Respondent: Sparke Helmore Lawyers

Date(s) of hearing:	29 January 2025
Applicant:	Self-Represented
Solicitors for the Respondent:	Sparke Helmore Lawyers