Glothlin and Secretary, Department of Social Services (Social security)

Case •

[2025] ARTA 952

•

2 June 2025

Glothlin and Secretary, Department of Social Services (Social security) [2025] ARTA 952 (2 June 2025)

Applicant/s:  Mrs McGlothlin

Respondent:  Secretary, Department of Social Services

Tribunal Number:   2025/P192926

Tribunal:General Member O. Sarrinikolaou

Place:Melbourne

Date:2 June 2025

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

SOCIAL SECURITY – Child Care Subsidy – immunisation requirements – two applications refused for both children and third for one child – vaccinations in home country, illness and travel – catch up vaccinations and attempts to update Australian Immunisation Register – errors by medical centre staff – medical contraindication – Child 1’s egg allergy and Child 2’s symptoms and tests – medical advice not certified in approved form – Family Assistance Guide requires reference to Register – no compelling reason to depart from Guide – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

  1. Mrs McGlothlin is the mother of two children, [Child 1] aged 2 and [Child 2] aged 5.  She and her family moved from [Country] to Australia on 20 December 2023. On 9 April 2024, she lodged a claim for child care subsidy with Services Australia – Centrelink (Centrelink).

  2. On 24 April 2024, an employee with Centrelink decided to reject Mrs McGlothlin’s claim on the basis that her two children did not meet the immunisation requirements.

  3. On 16 May 2024, Mrs McGlothlin lodged another claim for child care subsidy and the claim was rejected on 23 May 2024 because the two children did not meet the immunisation requirements.

  4. On 4 June 2024, Mrs McGlothlin lodged a further claim for child care subsidy. On 25 June 2024, an employee with Centrelink decided that [Child 2] did not meet the immunisation requirements, and therefore, child care subsidy was refused for [Child 2]. The claim was approved for [Child 1] who did satisfy the immunisation requirements.

  5. Mrs McGlothlin requested internal review of the decision, and on 12 December 2024, an authorised review officer affirmed the decisions in respect of the three claims.

  6. On 11 February 2025, Mrs McGlothlin lodged an application for independent review of Centrelink’s decision with the Tribunal.

  7. The Tribunal hearing proceeded on 30 April 2025 via Microsoft Teams conferencing and Mrs McGlothlin gave evidence on affirmation.  The Tribunal had before it the documents provided by Centrelink (folios 1 to 117).  Mrs McGlothlin confirmed that she had received a copy of Centrelink’s documents prior to the hearing. The Tribunal also had before it documents provided by Mrs McGlothlin after the hearing (A1 to A17).    

ISSUES

  1. The statutory provisions relevant to this review are contained in the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act), the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act) and the Family Assistance (Immunisation and Vaccination) (Education) Determination 2018 (the Immunisation Determination).

  2. The Tribunal has also had regard to the Family Assistance Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the case of G v Minister for Immigration and Border Protection [2018] FCA 1229, Mortimer J observed at [204] that it is clear from earlier authorities that, in “the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.”

  3. The only issue before the Tribunal is whether Mrs McGlothlin was eligible for child care subsidy when she lodged her claims on 9 April 2024, 16 May 2024 or 4 June 2024. In determining Mrs McGlothlin’s eligibility, the questions that arise are: 

    ·Did [Child 2] meet the immunisation requirements and, if so, from what date?

    ·Did [Child 1] meet the immunisation requirements and, if so, from what date?

CONSIDERATION

  1. Part 4A of the Family Assistance Act contains the provisions dealing with child care subsidy. Section 85BA of the Family Assistance Act provides that an individual is eligible for child care subsidy for a session of care if the child is an FTB child of the individual or their partner; the child is 13 or under and does not attend secondary school; the child meets the immunisation requirements in section 6; the individual or their partner meets the residency requirements; the individual or their partner have incurred a liability to pay for a session of care which is being provided in Australia and which is provided by an approved child care service; and Division 5 of the Family Assistance Act does not prevent the individual from being eligible for child care subsidy.

  2. Section 6 of the Family Assistance Act prescribes circumstances in which a child will meet the immunisation requirements for the purpose of assessing whether the individual is eligible for child care subsidy. Section 6 relevantly provides that a child will meet the immunisation requirements if one of the following requirements has been met:

    ·The child has been immunised (in accordance with the applicable schedule in the Immunisation Determination or a catch up vaccination schedule as determined under the Immunisation Determination).

    ·A doctor, including a general practitioner, has certified in writing that immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook.

    ·The child has been immunised overseas and a recognised immunisation provider has certified in writing that the vaccinations have been provided to the child with the same level of immunisation that the child would have acquired if the child had been vaccinated in accordance with a standard vaccination schedule in the Immunisation Determination; and the child has received all the other vaccinations in accordance with a standard vaccination schedule or a catch up vaccination schedule in the Immunisation Determination.

    ·The Secretary determines in writing that the child meets the immunisation requirements.

  3. Section 4 requires the Minister to make a determination by legislative instrument for the purposes of the definition of immunised in section 3.

  4. Subsection 6(7) of the Family Assistance Act provides that the Secretary must comply with the decision-making principles set out in a legislative instrument made for the purposes of making determinations under subsection 6(7).

  5. The Immunisation Determination is the legislative instrument made for the purposes of section 4 and subsection 6(6) of the Family Assistance Act. The Immunisation Determination sets out the decision‑making principles and section 8 provides that the Secretary may make a determination under subsection 6(6) of the Act if, and only if, the Secretary is satisfied that the requirements in section 9, 10, 11, 12, 13, 14 or 15 of this Determination are met.

  6. There is no provision in the Family Assistance Act, the Administration Act or the Immunisation Determination dealing with how the immunisation status of a child is to be ascertained. Topic 1.1.I.10 of the Guide provides that:

    the child's immunisation status, which is held by the Australian Immunisation Register (AIR), is automatically checked in daily electronic reports from the AIR to Centrelink. Where the AIR has not confirmed that immunisation requirements are met, the child will be regarded as not meeting the requirements.

  7. The legislation provides little guidance on the operation of catch up vaccination schedules. Topic 2.1.3.30 of the Guide also provides:

    An approved catch-up vaccination schedule commences when a child has not been vaccinated according to the National Immunisation Program early childhood schedule and commences a course of late vaccinations. The catch-up vaccination schedule for the child is determined by a recognised immunisation provider (1.1.R.09) according to information provided in the Australian Immunisation Handbook.

Mrs McGlothlin’s submissions

  1. Centrelink decided that Mrs McGlothlin’s children did not meet the immunisation requirements in section 6 of the Family Assistance Act when she made the claims for child care subsidy on 9 April 2024 and 16 May 2024, and only [Child 1] met the immunisation requirements when she lodged the claim on 4 June 2024. Centrelink’s decision was based on the information held on the Australian Immunisation Register (AIR). There is no dispute that the other requirements in section 85BA of the Family Assistance Act are satisfied from the date the first claim was made on 9 April 2024, and on the available evidence, the Tribunal agrees with those findings. The issue before the Tribunal is whether [the children] met the immunisation requirements at the time Mrs McGlothlin made each of the claims for child care subsidy.

  2. Mrs McGlothlin gave evidence that she and her family arrived in Australia from [Country] on 21 December 2023.  She had done a lot of research prior to their arrival and had identified a suitable location to reside and found a medical centre nearby.  She told the Tribunal that her children were fully vaccinated according to the [Country] standards. However, she was keen to ensure that their vaccination history was registered, that they met Australian requirements and to make arrangements for a catch up schedule, if needed.  Mrs McGlothlin booked an appointment with the medical centre on 16 January 2024. The documentary evidence before the Tribunal includes consultation notes with the doctor on 16 January 2024 for each of the children, which is consistent with Mrs McGlothlin’s evidence.  Mrs McGlothlin said that [Child 2] had all of her vaccinations prior to their arrival in Australia and that [Child 1] missed her last vaccination because she had caught a virus and then the family travelled.

  3. During the consultation with the doctor on 16 January 2024, Mrs McGlothlin had taken in the children’s vaccination passports.  A nurse, [Ms A], was involved in the consultation who said that the vaccination history could not be registered until their Medicare had come through.  The doctor advised that she did not feel comfortable giving [Child 2] the chicken pox vaccine because of her severe egg allergy. Mrs McGlothlin told the Tribunal that the chicken pox vaccine is not available in [Country].  The doctor advised that [Child 2] should have the vaccines in a hospital setting or with a specialist immunologist, and that she would organise that. When the Medicare card was received in early March 2024, Mrs McGlothlin again attended the medical centre and advised nurse [Ms A] who said she would register the vaccination history and get the catch up vaccination schedules organised.

  4. The following day, Mrs McGlothlin attended the medical centre to see the doctor with [Child 2] who had developed concerning symptoms.  She gave evidence that [Child 2] was spending a lot of time in hospital having tests and seeing doctors because they thought she may have leukaemia. After extensive investigations, the doctors concluded that [Child 2] did not have leukaemia but another genetic condition. Despite the concerns with [Child 2]’s health, Mrs McGlothlin had weekly contact with the nurse at the medical centre about the vaccination history because Centrelink were advising that the children were not vaccinated.  The nurse insisted that their history had been registered and all steps taken and provided Mrs McGlothlin with the printouts to confirm the registration. 

  5. Mrs McGlothlin gave evidence of a long and frustrating process liaising with the medical centre, Centrelink and staff at the AIR and had the issue escalated several times.  She attended the clinic multiple times and was assured the registration had been completed.  Centrelink and AIR were advising her that the children were not immunised. She made multiple complaints to have the matter rectified, which is consistent with the documentary evidence before the Tribunal. Mrs McGlothlin told the Tribunal that eventually it was discovered that the nurse at the clinic, [Ms A], was not updating the system correctly to register the children’s vaccinations or the catch up vaccination schedule and this was eventually rectified in June 2024 at which time the children had their catch up vaccinations. Mrs McGlothlin submitted that her children were fully vaccinated in [Country] and the appropriate steps to have their history registered in Australia were taken.  The fact that processing difficulties prevented the registration of the catch up vaccination schedule on AIR does not mean the children did not satisfy the immunisation requirements when she made the first claim in April 2024. Mrs McGlothlin told the Tribunal that she has approximately $17,000 owing to the child care centre and she would like the centre to receive the money they are entitled to.

Did [Child 2] meet the immunisation requirements and, if so, from what date?

  1. The hearing papers provided by Centrelink include correspondence from AIR which records that [Child 2] was overdue for measles, mumps, rubella and varicella (chicken pox). [Child 2] was due to have those vaccines when she was 18 months, [in] July 2021, and the vaccines were administered on 14 November 2024.  The correspondence also states that [Child 2] had a catch up vaccination schedule recorded from 28 November 2024 to 28 May 2025 and a medical contraindication exemption for measles, mumps and rubella from 27 June 2024 to 27 September 2024. A medical contraindication exemption for varicella was recorded from 2 July 2024 to 1 October 2024.  

  2. The correspondence from AIR acknowledges receipt of the undated letter from [Dr B] which reported a possible medical contraindication.  However, it was noted that an exemption must be in the form and manner required by the Secretary.  The letter from [Dr B] was attached to a proposed catch up plan calculator that was not reported to AIR and the proposed catch up had not been followed.[1]

    [1] Hearing papers, page 22

  3. Mrs McGlothlin did not dispute that [Child 2] was not yet immunised for chicken pox and needed the MMR vaccine, the combination vaccine for measles, mumps and rubella.  However, she stated that [Child 2] was on a catch up vaccination schedule at the time of her first claim in April 2024 and that [Child 2] had her first catch up vaccine on 7 May 2024. The documentary evidence shows that [Child 2] received the vaccine for diphtheria, tetanus, pertussis and polio on 7 May 2024.[2] Mrs McGlothlin said that there was a delay with the chicken pox and MMR vaccines because of [Child 2]’s egg allergy and the suspected leukaemia.

    [2] Hearing papers, page 46

  4. In a letter dated 11 September 2024, [Dr C] from [Medical Centre] confirmed that [Child 2] attended the clinic and a catch-up schedule was initiated on 9 April 2024.[3]  The documentary evidence before the Tribunal includes a copy of a catch up vaccination schedule created for [Child 2] on 27 May 2024, which records that the second dose of the MMR and varicella were due immediately.

    [3] Hearing papers, page 70

  5. The consultation notes for [Child 2]’s doctor’s visit on 16 January 2024 records that she had a severe anaphylaxis to eggs in June 2023 and carries two EpiPens, mum did not have a chance to follow up with an allergy specialist so would be keen for a referral. Keen to have varicella – advised best to wait for specialist.  In her undated letter, [Dr B] recorded that she was reluctant to go ahead with the chicken pox vaccine with [Child 2] because of the severe allergic reaction to eggs and will be seeking the allergy specialist opinion. 

  6. Mrs McGlothlin provided a copy of [Child 2]’s immunisation history statement as at 14 May 2025 which records that as at that date [Child 2]’s immunisation status is up-to-date.  Relevantly, the statement records that [Child 2] received the vaccine for measles, mumps, rubella and varicella on 14 November 2024, which is consistent with the information provided to Centrelink by AIR.

  7. The Tribunal has considered each of the criteria in section 6 of the Family Assistance Act. Subsection 6(2) provides that a child meets the immunisation requirements if the child has been immunised. Subsection 3(1) provides that immunised, in relation to a child, means the child is immunised in accordance with either a standard vaccination schedule or a catch up vaccination schedule in the Immunisation Determination. Mrs McGlothlin conceded that there was a delay in administering the vaccination for measles, mumps, rubella and varicella because of her severe egg allergy and the suspected leukaemia which was being investigated. The delay was on the advice of the doctor. As [Child 2] did not have the measles, mumps, rubella and varicella vaccinations when they were due on 1 July 2021, she was not immunised in accordance with the standard vaccination schedule in schedule 4 of the Immunisation Determination.

  8. Subsection 3(1) of the Family Assistance Act allows for immunisation in accordance with a catch up vaccination schedule. Section 17 of the Immunisation Determination provides that the catch up vaccination schedule for the child is determined in accordance with the Australian Immunisation Handbook, to the extent that the schedule relates to the antigens and diseases mentioned in column 3 of Schedule 1 to 5 to this Determination. Mrs McGlothlin submitted that even though a catch up vaccination schedule was not submitted with AIR, the Tribunal should be satisfied that [Child 2] was on a catch up vaccination schedule and therefore, satisfied the immunisation requirements. The Tribunal cannot accept this submission. While the legislation is silent on the process for ascertaining a child’s immunisation status, the Guide is very clear and requires decision makers to refer to AIR. This guidance ensures a uniform approach and consistency in decision making. Topic 1.1.I.10 of the Guide is not inconsistent with the Family Assistance Act, the Administration Act or the Immunisation Determination and in the absence of a statutory indication to the contrary, the Tribunal will have regard to the Guide.

  9. The correspondence from AIR confirms that there was no catch up submitted for [Child 2] prior to 28 November 2024, well after each of the three child care subsidy claims were made. Therefore, [Child 2] did not satisfy the immunisation requirements in subsection 6(2).

  10. The Tribunal notes that even if it disregarded the records held by AIR and made findings on the documentary evidence relied on by Mrs McGlothlin, the Tribunal’s finding under subsection 6(2) would be the same because there is no evidence that [Child 2] was immunised in accordance with a catch up vaccination schedule, even if one existed. The documentary evidence includes a catch up vaccination schedule which, although not lodged with the AIR, was created on 27 May 2024 and specified that the measles, mumps, rubella and varicella vaccines were due immediately on 27 May 2024. However, these vaccines were not administered to [Child 2] until 14 November 2024. Given the delay in administering the overdue vaccines, [Child 2] was not immunised in accordance with a catch up vaccination schedule and therefore, does not satisfy the requirement in subsections 3(1) and 6(2).

  11. The Tribunal then considered whether [Child 2] satisfied the immunisation requirement based on a medical contraindication under subsection 6(3) of the Family Assistance Act. This provision requires that a general practitioner or other specified professional certifies in writing that the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook. Topic 2.1.3.40 of the Guide requires that the certification be in the approved form and manner and must be made through the Australian Immunisation Register (AIR) site or on the Australian Immunisation Register (AIR) Immunisation medical exemption form (IM011).  According to AIR, there was no medical exemption for [Child 2] on the basis that the measles, mumps, rubella and varicella vaccines were medically contraindicated until 27 June 2024 and 2 July 2024. Therefore, the Tribunal is not satisfied that [Child 2] satisfied paragraph 6(3)(a) of the Family Assistance Act.

  1. Ms McGlothlin told the Tribunal that [Child 2] has a severe egg allergy and there is an egg component in the measles, mumps, rubella and varicella vaccines.  [Dr B] reported that [Child 2] has a severe egg allergy and is reluctant to administer the chicken pox vaccine without an opinion from an allergy specialist.[4] The doctor’s advice to wait for a specialist’s opinion was also recorded in the consultation notes of 16 January 2024.[5] [Dr B] was clearly concerned about the possible risk of the varicella vaccine. However, [Dr B] did not report concerns with the measles, mumps and rubella vaccine. Even if the Tribunal made findings on the basis of the medical evidence relied on by Mrs McGlothlin, the determination under paragraph 6(3)(a) would be the same because there is no medical evidence to confirm that the measles, mumps, rubella vaccines were medically contraindicated at the time the three claims were made and assessed by Centrelink. There is no evidence of natural immunity or that [Child 2] was involved in a vaccine study. Therefore, paragraphs 6(3)(b) and 6(3)(c) of the provision do not apply.

    [4] Hearing papers, page 42.

    [5] Hearing papers, page 44.

  2. Subsection 6(4) of the Family Assistance Act provides that a child meets the immunisation requirements if a vaccine is temporarily unavailable. There is no evidence that the vaccines were unavailable and therefore, this provision does not apply.

  3. Subsection 6(5) of the Family Assistance Act provides that a child meets the immunisation requirements if vaccinated overseas and a recognised immunisation provider has certified in writing that the vaccinations have been provided at the same level as that specified in the Schedules in the Immunisation Determination, and the child has received all other vaccines in accordance with a standard schedule or catch up vaccination schedule. As [Child 2] has not received the overdue vaccinations even in accordance with a catch up vaccination schedule, she does not satisfy the requirements in subsection 6(5).

  4. Subsection 6(6) of the Family Assistance Act allows the Secretary to determine that a child meets the immunisation requirements under the principles set out in the Immunisation Determination. The Secretary can make the determination to grant an exemption to the immunisation requirements if the person with legal authority to make decisions about the child’s medical treatment does not consent to the immunisation; the child, a family member or the claimant is at risk of family violence; the claimant is a permanent humanitarian visa holder; the child is at risk of serious abuse or neglect; the child or another person is exposed to an unacceptable risk of harm from immunisation and a medical practitioner has set out the reasons; or the notice reminding an individual that a child has ceased to be immunised has not been sent. The Secretary is permitted to make a determination under section 15 for children who are born after 1 January 2017 who have been vaccinated in accordance with Schedule 3.

  5. On the available evidence, the only exemption in the Immunisation Determination that may apply to [Child 2] is that contained in section 13.  The exemption applies if a medical practitioner has certified in writing, and in the approved form and manner that for the reasons set out in the certificate, immunisation would result in an unacceptable risk of physical harm to the child. The Commonwealth Chief Medical Officer must certify in writing that they agree with the medical practitioner.  [Dr B] has confirmed in writing that she was reluctant to administer the varicella vaccine to [Child 2] because of her severe egg allergy.  [Dr B] did not provide written certification in the approved form and there is no evidence that the Chief Medical Officer agreed with [Dr B]’s concerns. Therefore, the exemption in section 13 of the Immunisation Determination does not apply.  The Tribunal notes that [Dr B]’s concerns were limited to the varicella vaccine which means that even if the concerns were in the approved form and agreed to by the Chief Medical Officer, the exemption would be limited to the varicella vaccine.   

  6. The Tribunal is satisfied that the exemptions available in the Immunisation Determination do not apply to [Child 2]. Therefore, a determination exempting [Child 2] from the immunisation requirements cannot be made under subsection 6(6) of the Family Assistance Act.

  7. Having considered the relevant provisions and the evidence before it, the Tribunal is satisfied that [Child 2] first satisfied the immunisation requirements in section 6 of the Family Assistance Act on 2 July 2024 when there was written certification from an appropriately qualified medical professional that the measles, mumps, rubella and varicella vaccines would be medically contraindicated for her. There was no evidence confirming the medical contraindication of all overdue vaccines prior to 2 July 2024. Therefore, [Child 2] did not meet the immunisation requirements under section 6 of the Family Assistance Act when Mrs McGlothlin made her claims for child care subsidy on 9 April 2024, 16 May 2024 or 4 June 2024.

    Did [Child 1] meet the immunisation requirements and if so, from what date?

  8. The correspondence from AIR which was relied on by Centrelink to refuse Mrs McGlothlin’s claim, records that [Child 1] was overdue for diphtheria, tetanus, pertussis, hib and varicella.  These vaccines were due on 18 February 2024 and were administered on 18 June 2024. AIR reported that [Child 1] has never had a catch up vaccination schedule. 

  9. Mrs McGlothlin told the Tribunal that [Child 1] had missed her 12-month vaccinations because of illness and travel.  She also acknowledged that the varicella vaccine was not available in [Country]. As with [Child 2], Mrs McGlothlin told the Tribunal that a catch up vaccination schedule was in place for her when she lodged her first claim in April 2024 and that [Child 1] had her first catch up vaccine on 7 May 2024.

  10. The Tribunal first considered whether [Child 1] satisfied subsection 6(2) of the Family Assistance Act which requires immunisation in accordance with either a standard vaccination schedule or a catch up vaccination schedule. There is no dispute that [Child 1] was overdue for the vaccines required to be administered at 12 months which means that she was not vaccinated in accordance with the standard schedule being schedule 4. The next question is whether she was vaccinated in accordance with a catch up vaccination schedule as determined under the Immunisation Determination.

  11. Centrelink’s records show that a catch up vaccination schedule for [Child 1] was never submitted with AIR. The Guide requires the Tribunal to ascertain [Child 1]’s immunisation status from the records held by AIR.  As stated above and in the absence of a compelling reason to depart from the Guide, the Tribunal will consider the records held by AIR to determine [Child 1]’s immunisation status.  However, for completeness, the Tribunal will consider Mrs McGlothlin’s submissions.

  12. The hearing papers include a catch up vaccination schedule that was created on 27 May 2024 for [Child 1] which records that on 7 May 2024, she received the vaccine for pneumococcal, measles, mumps and rubella.  The following day on 8 May 2024, she received the vaccine for meningococcal. According to the standard vaccination applicable to [Child 1], schedule 4, the vaccines administered on 7 and 8 May 2024, were the vaccines due at 12 months, which were overdue.  The catch up vaccination schedule states that as at 27 May 2024, diptheria, tetanus, pertussis and haemopjilus Influenza Type B (Hib) were due immediately.  The schedule for next appointments stated:

    4 June 2024 – measles, mumps, rubella and varicella

    25 June 2024 – meningococcal B

    2 July 2024 – varicella (dose 2)

  13. [Child 1]’s immunisation history statement records that on 18 June 2024 she received the vaccines for Hib, measles, mumps, rubella, varicella, diphtheria, tetanus and pertussis.[6] This satisfies the Tribunal that on 18 June 2024, [Child 1] satisfied the immunisation requirements in subsection 6(2) of the Immunisation Determination. It follows that when Centrelink assessed the June claim on 25 June 2024, [Child 1] satisfied the immunisation requirements and Mrs McGlothlin was entitled to child care subsidy for [Child 1]. However, the issue that remains is whether [Child 1] satisfied the immunisation requirements in April and May 2024 on the basis that a catch up vaccination schedule was in place.

    [6] Hearing papers, page 58

  14. There is evidence of a consultation with the general practitioner on 16 January 2024 to organise [Child 1]’s immunisation update.  The clinical notes state that due to not having Medicare unable to upload in AIR – [Ms A] has applied for a catch up programme for a head start.[7]The only evidence of a catch up vaccination schedule is the schedule created on 27 May 2024. The difficulty with this schedule is that it was created after Mrs McGlothlin lodged her claims on 9 April 2024 and 16 May 2024, and after the claims were assessed by Centrelink. The other difficulty with this schedule is that it was not adhered to. According to the schedule created on 27 May 2024, [Child 1] was due to have the vaccines for diphtheria, tetanus, pertussis and Hib on 27 May 2024 but these vaccines were not administered until 18 June 2024. As [Child 1]’s vaccinations were not administered as planned in the catch up vaccination schedule created on 27 May, she was not immunised in accordance with a catch up vaccination schedule as required by subsection 3(1). It follows that [Child 1] did not meet the immunisation requirement in subsection 6(2) of the Family Assistance Act.

    [7] Hearing papers, page 43.

  15. The Tribunal acknowledges that there was not a significant delay between 27 May 2024 and 18 June 2024. However, there is no provision in either the Family Assistance Act or the Immunisation Determination that allows for a grace period when administering vaccines under a catch up vaccination schedule. There is no grace period specified in the Guide.

  16. The Tribunal then considered whether on a date prior to 18 June 2024, [Child 1] satisfied any of the other immunisation requirements in section 6 of the Family Assistance Act or satisfied the exemptions from the immunisation requirements in the Immunisation Determination. There was no evidence that [Child 1]’s immunisation was medically contraindicated, that she had developed natural immunity or that she was participating in an approved vaccine study. Therefore, subsection 6(3) does not apply.

  17. There was no evidence that the overdue vaccines were temporarily unavailable and so, subsection 6(4) does not apply.

  18. [Child 1] was vaccinated overseas and therefore, subsection 6(5) of the Family Assistance Act is relevant. However, a child who has been vaccinated overseas will satisfy the immunisation requirements if there is certification that the vaccinations administered overseas were at the same level that the child would have acquired if vaccinated in accordance with a standard vaccination schedule or catch up vaccination schedule determined under the Immunisation Determination, and all other vaccines have been received by the child in accordance with a standard vaccination schedule or a catch up vaccination schedule. For the reasons set out above, [Child 1] received the overdue vaccines on 18 June 2024 at which time she satisfied subsection 6(5).

  19. The Tribunal considered whether the exemptions in the Immunisation Determination applied to [Child 1] when Mrs McGlothlin lodged her claims in April and May 2024. There was no evidence before the Tribunal that consent was withheld from the person authorised to make decisions about medical treatment (clause 9) nor was there evidence of a risk of family violence (clause 10), serious abuse or neglect (clause 12), or an unacceptable risk of harm to [Child 1] or another person (clause 13). Mrs McGlothlin is not a humanitarian visa holder and therefore, clause 11 does not apply. Clause 14 does not apply because it only applies when a child has ceased to be immunised, and the reminder notice has not been received. Clause 15 is not applicable to [Child 1] because it applies to children born on or after 1 January 2017 who have been vaccinated in accordance with schedule 3. As none of the exemptions in the Immunisation Determination apply to [Child 1], the Tribunal finds that [Child 1] satisfied the immunisation requirements in subsection 6(2) on 18 June 2024 when all overdue vaccines were administered.

  20. Having reviewed the immunisation history for each child and the evidence before it, the Tribunal is satisfied that neither of Mrs McGlothlin’s children met the immunisation requirements in section 6 of the Family Assistance Act when she lodged her claims for child care subsidy on 9 April 2024 and 16 May 2024. Therefore, the eligibility requirements for child care subsidy in section 85BA were not satisfied and Mrs McGlothlin was not eligible for child care subsidy.

  21. The Tribunal is satisfied that when Mrs McGlothlin’s claim of 4 June 2024 was assessed, [Child 1] met the immunisation requirements in section 6 of the Family Assistance Act and therefore, the requirements in section 85BA were satisfied in respect of [Child 1]. It follows that Mrs McGlothlin was eligible for child care subsidy in respect of [Child 1].

  22. The Tribunal is sympathetic to Mrs McGlothlin who took all the right steps to ensure her children were fully immunised in Australia and she did so immediately upon her arrival. It is through no fault of her own that the catch up vaccination schedules and medical contraindications were not submitted with AIR.  Unfortunately, errors occurred because of the lack of knowledge and experience at the medical centre she was attending. Mrs McGlothlin has now incurred a child care debt, which has placed a significant burden on her and her young family as they start their life in Australia. It is open to Mrs McGlothlin to obtain advice about other remedies that may be available to her.

DECISION

The Tribunal affirms the decision under review.

Date of hearing: 30 April 2025
Representative for the Applicant: Self represented

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

G v Minister for Immigration and Border Protection [2018] FCA 1229