HE and Secretary, Department of Education, Skills and Employment (Social services second review)

[2021] AATA 4307

HE and Secretary, Department of Education, Skills and Employment (Social services second review) [2021] AATA 4307 (19 November 2021)

Division:                  GENERAL DIVISION

File Number(s):      2020/7966 & 2021/0251

Re:Jian HE

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Member P Ranson

Date:19 November 2021

Place:Brisbane

The reviewable decision of the Social Services and Child Support Division (SSCSD) of the Tribunal dated 24 September 2020 is affirmed.

The second reviewable decision of the SSCSD dated 8 December 2020 is set aside and in substitution the Tribunal finds the Applicant Mr He is entitled to be paid CCS for the period 28 September 2018 to 5 October 2018.

......................[SGD]....................

Member P Ranson

Catchwords

SOCIAL SECURITY – Child Care Benefit – Child Care Rebate – Child Care Subsidy – liable to pay – vacation care – outside school hours care session of care – missed sessions of care – absences due to illness – separated parents

Legislation

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

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

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Equuscorp P/L v Short Punch & Greatorix & Ors; Equuscorp P/L v Deacons Graham & James & Anor (2000) QCA 407

Secondary Materials

Child Care Subsidy Minister's Rules 2017 (Cth)

Child Care Subsidy Secretary's Rules 2017 (Cth)

The Family Assistance Guide

REASONS FOR DECISION

Member P Ranson

19 November 2021

Contents

BACKGROUND

PROCEDURAL HISTORY

FACTS, ISSUES AND CONTENTIONS

Case 1: CCB and CCR for 2016/17 and 2017/2018 financial years

2016/2017 financial year

Who was liable to pay the sessions of childcare?

2017/2018 financial year

Case 2: CCS for 2018/19 financial year

A Service May Not Be Divisible Between OSHC and Vacation Care

CONCLUSION

DECISION

BACKGROUND

1. The Australian government provides a range of social security benefits to its citizens and other eligible residents. The delivery of those payments and services, especially social security payments, is provided by Services Australia through Centrelink. Those benefits include Child Care Benefit and Child Care Rebate.

2. Child Care Benefit (CCB) was an income-tested payment to assist eligible parents and carers with the cost of Childcare to provide incentives for parents and carers with low and middle incomes to participate in the workforce and community and to balance work and family commitments. CCB could be paid to the approved Childcare service and passed on to the person as a fee reduction; or the person may pay the Childcare fees and claim CCB as a lump sum at the end of the financial year.

3. Child Care Rebate (CCR) was a payment from the Australian Government to help working families with the cost of Childcare. Parents using approved Childcare for work, training or study-related reasons could apply for the Government to cover 50% of out-of-pocket Childcare costs, up to the annual limit. CCR was paid fortnightly or to the Childcare service provider as a fee reduction. CCR could also be paid quarterly or annually as a lump sum directly to a bank account.

4. An eligible recipient must first be entitled to CCB before they can be eligible for CCR. Both benefits could be paid to the approved Childcare provider as a fee reduction or as a lump sum to the person eligible to receive the benefit.

5. Child Care Subsidy (CCS) replaced Child Care Benefit and Child Care Rebate when they stopped on 1 July 2018. As will be seen later, the first part of this case involves the law up to 1 July 2018 and the second part involves the law from 2 July 2018.

6. Mr Jian He and Ms Min Zhou are the separated parents of a child born in 2013 (the Child). Since separation, the care arrangement as between the parents has varied from 0% to Mr He in mid-2016 to 50% from January 2018. There are two matters to be decided in this case. The first concerns CCB and CCR in the 2016/2017 and 2017/2018 financial years. The second concerns CCS in the 2018/2019 financial year.

7. Firstly, from January 2016, the Child was enrolled at an Early Learning Centre (ELC) close to where the parents live and both CCB and CCR were payable as a result. Court orders made Mr He responsible for the payment of the childcare fees, which he paid. The way the Child was enrolled at the ELC is unclear however the ELC recorded Ms Zhou as the account holder and therefore liable to pay the fees until Mr He lodged an application in his name in June 2017 at which time he became the account holder and liable for the fees.

8. CCB can only be paid to the parent who is liable for the payment of the fees. The question of who is liable as opposed to who is responsible for the payment of fees is very important in this decision. Notwithstanding the application lodged in June 2017, Mr He believes he is entitled to the CCB from the time the Child was originally enrolled at the ELC. This is on the basis, he says, the court orders made him liable for the payment of the childcare fees because he was responsible for them, and there is no evidence of who originally enrolled the Child in childcare at the ELS. Centrelink disagrees.

9. Further, Mr He claims he paid for childcare from 6 January 2018 to 30 June 2018 for the Child even though the Child finished childcare on 5 January 2018 and commenced his prep year at the local state primary school on 22 January 2018. On the basis he paid for childcare during that period, Mr He believes he should be paid CCB and CCR for that period even though no sessions of care were provided.

10.  Secondly, in 2018, the Child was enrolled at the local state school and both parents enrolled him in its outside of school hours care (‘OSHC’). At that time Mr He was assessed as entitled to stated 85% of the subsidy and 72 hours per fortnight would be subsidised. The care arrangement remained 50% to each parent.

11.  The Child was enrolled in the vacation care program for the term three school holidays from 22 September 2018 to 7 October 2018. Unfortunately, the Child took ill and was unable to attend vacation care for most of those holidays. As a result, the CCS was revoked from 1 October 2018 and Mr He was required to pay full fees. Mr He believes he is entitled to be paid CCS for that period. Centrelink disagrees.

12.  Mr He objected to both decisions of Centrelink, which were referred to authorised review officers who affirmed the decisions. Mr He then applied to this Tribunal for a review of those decisions. Each matter was heard separately, and decisions were handed down on 24 September 2020 in respect of CCB and CCR; and on 8 December 2020 in respect of CCS.

13.  Dissatisfied with those decisions, Mr He has sought a review of them with the General Division of this Tribunal.

PROCEDURAL HISTORY

14.  There are two matters associated with this case. Mr He is the Applicant in both. The first, under Tribunal file number 2020/7966, concerns the payment of CCB and CCR to Mr He in the 2016/2017 and 2017/2018 financial years (Case 1) and the other, under Tribunal file number 2021/0251, concerns the payment of CCS to Mr He in the 2018/2019 financial year (Case 2). On 1 July 2021 directions were made to case manage Case 1 and Case 2 together with evidence in one matter to be taken as evidence in all matters, and with Case 1 being the leading case.

15.  The parties in this case are:

Applicant	Jian He (Mr He)
Respondent	Secretary, Department of Education, Skills and Employment (the Department)

16.  The hearing in this application occurred on 5 July 2021 (the Hearing). Ms Jasmine Forsyth (Ms Forsyth) represented the Department.

17.  Mr He and Ms Forsythe attended the Hearing by video link facilitated by the Tribunal utilising Microsoft Teams. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing by video conference, having regard to the nature of this matter and the individual circumstances of Mr He. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied Mr He was given a fair opportunity to give evidence and present arguments.

18.  Case 1 turns on which parent was liable to pay the fees to the ELC in 2016/17. In a bid to resolve that question, the Tribunal directed the Respondent to write to the ELC after the hearing and provided the wording for the letter. Mr He objected to this direction as he considered it would be prejudicial to his case. The ELC responded by e-mail on 12 July 2021, see Exhibit 14. Mr He responded to the ELC e-mail on 16 July 2021, see Exhibit 15, and the Respondent replied on 10 August 2021, see Exhibit 16.

19.  Case 2 turns on what a session of care means.

FACTS, ISSUES AND CONTENTIONS

20.  The following documents were admitted into evidence:

Case 1:

Exhibit	Description
1	Section 37 T-Documents paged 1 to 197.
MFI A	Applicant’s Statement of Facts Issues & Contentions (Version 1 undated and received by the Tribunal on 2 March 2021)
MFI B	Applicant’s Statement of Facts Issues & Contentions (Version 2 dated 12 May 2021)
2	Applicant’s Statement of Facts Issues & Contentions (Version 3 dated 3 June 2021)
3	Written Submissions filed by the Applicant comprising a series of e-mails
4	Respondent’s Statement of Facts & Contentions dated 7 April 2021 pages 1 to 40.
5	Federal Court Parenting Order dated 12 July 2016
6	Child Care Arrangements Details Form dated 27 July 2016
7	Series of emails between the Applicant and the Avenues Early Learning Centre.
8	Series of ANZ Bank Statements in the Applicant’s name
9	Series of Statements from the Avenues Early Learning Centre
10	Email from Avenues Early Learning Centre confirming 2017 bookings dated 25 October 2016
11	Request for Information from Respondent directed to Avenues Early Learning Centre dated 11 March 2021
12	Documents provided by Avenues Early Learning Centre to the Respondent
13	Series of two e-mails from the Applicant dated 6 July 2021.
14	E-mail from Avenues Early Learning Centre date 12 July 2021
15	Document described as ‘The Extra of Applicant’s Statement of Facts, Issues & Contentions’ dated 16 July 2021 with four e-mails attached.
16	Secretary's submissions on further evidence from Avenues Early Learning Centre dated 10 August 2021.

Case 2:

Exhibit	Description
17	Section 37 T-Documents paged 1 to 215.
18	Supplementary T-Documents paged 1 to 28.
19	Applicant’s Statement of Facts Issues and Contentions
20	Respondent’s Statement of Facts & Contentions dated 11 May 2021 pages 1 to 7.
21	Statement – Sunnybank Hill State School OSHC dated 24 September 2018
22	Collection of Screenshots of Child Care Subsidy Enrolments dated 10 June 2021
23	Excerpts of the Family Assistance Guide filed by the Applicant (Enrolment, Absences, Session of Care)

21.  The Department and Mr He provided Statements of Facts & Contentions in relation to both cases as follows:

Provided by	Date	Case 1	Date	Case 2
Mr He	03/06/2021	A-SFIC1	Undated	A-SFIC2
Department	07/04/2021	R-SFIC1	11/05/2021	R-SFIC2

The Department identified the issues, in a SFIC dated 7 April 2021 in relation to Case 1, listed as Exhibit 4 (R-SFIC1). The second SFIC dated 11 May 2021 identifies the issues in relation to Case 2, listed as Exhibit 20 (R-SFIC2) (collectively the R-SFICs). Mr He provided three versions of his Statements of Facts & Contentions. The Tribunal has relied on the most recent being the third version dated 3 June 2021, listed as Exhibit 2 (A-SFIC1).

22.  The R-SFICs set out in detail the Secretary’s view of the law relevant to both cases with which the Tribunal agrees. As a copy of each SFIC was provided to Mr He prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation for both cases is:

Case 1 and Case 2 rely on:

·     A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act); and

·     A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Administration Act)

Case 2 also relies on:

·     Child Care Subsidy Minister's Rules 2017 (the Minister's Rules)

·     Child Care Subsidy Secretary's Rules 2017 (the Secretary's Rules)

The relevant policy for both cases is contained in:

·     The Family Assistance Guide (the Guide).

23. As the Secretary pointed out in the SFICs, the statutory provisions have been amended therefore references to the FA Act and Administration Act are as they were before 1 July 2018 for Case 1 and as at 2 July 2018 for Case 2.

24.  The Tribunal relies on Re Drake[1] in stating policy in the Guide should be applied in the absence of cogent (convincing or compelling) reasons not to do so.

[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

25.  Mr He and the Department identified the issues to be decided as follows:

Case 1: Whether Mr He was paid the correct entitlement to CCB and CCR for the 2016/17 and 2017/2018 financial years.

Case 2: Whether Mr He was paid the correct entitlement to CCS for the 2018/19 financial year.

26.  The Tribunal has considered all the written evidence supplied to it and the oral evidence of Mr He and Ms Forsythe at the Hearing. Not all the evidence is referred to at length in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

Case 1: CCB and CCR for 2016/17 and 2017/2018 financial years

27.  The historical facts around Case 1 and the payment of CCB and CCR to Mr He, and the origin of the dispute, are set out in detail in [4] to [34] of R-SFIC1. Mr He disputes some of the facts included in R-SFIC1, which are also mentioned below.

28.  In Case 1, the difference between being responsible for a payment and liable for a payment bears consideration especially as it is of great importance to Mr He. Being responsible for a payment means answerable or liable to be called to account to another person for something. Being liable for a payment means bound or obliged by law or equity, or in accordance with a rule or convention. Based on those dictionary definitions, being liable and being responsible are close in meaning.

29.  In Re Equuscorp[2] de Jersey CJ, McPherson JA and White J provided clarity to the meaning of the word ‘liable’ at [10]:

‘The words “liable to pay” in s 3 carry their usual meaning, “responsible in law” (Littlewood v George Wimpey & Co Ltd [1953] 2 QB 501,515), and a person liable to pay is “a person against whom payment of the (costs) can be enforced” (Deputy Commissioner for Taxation v Moorebank Pty Ltd [1987] 1 QdR 414, 416).’

[2] Re Equuscorp P/L v Short Punch & Greatorix & Ors; Equuscorp P/L v Deacons Graham & James & Anor (2000) QCA 407

30. The wording in s 43(1)(c) and s 44(1)(c) of the FA Act is clear. A Childcare benefit, whether for a past period or otherwise, is payable to the individual who has incurred the liability to pay for the session of care. That is, which individual could the provider of the session of care, the ELC in this case, have successfully sued for the fees for that session.

2016/2017 financial year

31.  The Child was enrolled in the ELC on 4 January 2016. The ELC was asked to provide copies of all enrolment documents relating to the Child. They were not able to provide a copy of the original enrolment done in January 2016 however they were able to provide a copy of the enrolment done by Mr He on 1 June 2017. As will be seen later, the Tribunal is satisfied the original enrolment was done by the mother (Ms Zhou).

32.  Mr He and Ms Zhou separated on 24 May 2016 and from then until 11 July 2016, a period of 50 days, the Child was withheld from Childcare and from Mr He. CCB and CCR was paid to Mr He for the period from original enrolment on 4 January 2016 to 23 May 2016. The Child resumed attendance at the ELC on 12 July 2016, being the date of the Federal Circuit Court of Australia (FCCA) Temporary Parenting Orders.

33.  Payment of CCB and CCR to Mr He prior to 24 May 2016 would have been on the basis he and Ms Zhou were partners so s 43(1)(c) would have applied as one or the other of them were liable to pay for the sessions of care.

34.  Mr He paid the Childcare fees from 12 July 2016 until 1 June 2017 pursuant to two Orders of the FCCA. The first was a temporary order dated 12 July 2016, which at paragraph 10 required: ‘That the father [Mr He] shall be solely responsible for all costs associated with the child’s day-care.’ The second order is dated 21 November 2016 and pursuant to paragraph 14 the cost of Childcare was shared 65% by Mr He and 35% by Ms Zhou. The Consent Orders were signed by Ms Zhou and signed and dated by Mr He who says he paid 100% of the Childcare fees until 30 November 2016.

35.  On 1 June 2017, Mr He, he says on the advice of the ELC manager, signed and lodged an application in his name for the Child[3]. Thereafter he had an account in his name and received the benefit of CCB and CCR accordingly. The Child attended the ELC on Thursdays and Fridays commencing 8 June 2017 being the date Mr He first became liable for the fees. That entitlement continued and was paid until Friday 5 January 2018 with the final payment notified by letter to Mr He dated 19 April 2018[4]. The Child commenced primary school on Monday, 22 January 2018.

[3] Annexure A to Exhibit 4

[4] T18

Who was liable to pay the sessions of childcare?

36.  Following the hearing on 5 July 2021, the Tribunal issued directions to the Respondent to issue a letter, drafted by the Tribunal, to the ELC seeking clarification of certain details shown on the account statements and other documents so as to finally determine who was the account holder from the original enrolment of the Child in January 2016.

37.  The account statements show an account number and at various times the name of Ms Zhou and Mr He are displayed making it difficult to determine who the account holder was from those documents. Having determined the rightful account holder, that would identify the individual who had the liability to pay for the sessions of care.

38.  The ELC was also requested to provide a copy of the original enrolment form. They were unable to do so as it had been destroyed three years after the Child finished at the centre in January 2018, that is, it was destroyed on or about January 2021.

39.  The response from the ELC [Exhibit 14] can be summarised as follows:

(a)  On the question of who the account holder was, the ELC advised the parent who holds the CCB rights is the account holder and that the nine-digit number shown on the account statement is the account number for the family.

(b)  The account holder is the mother. At the request of the father and with the agreement of the mother, the father was included on the account as he was the one who most of the time would pay the fees via EFTPOS.

(c)   The centre manager asserts she engaged in multiple conversations with the father to register his CRN (Customer Reference Number for Centrelink purposes) for the Child for CCB purposes under his name to create a shared account. The centre manager further asserts the father advised her to: ‘leave it until he had the CRN set up’.

(d)  In paragraph 2 the centre manager states: ‘I have already sent the mother’s enrolment forms.’ The Tribunal is not aware that the original enrolment form has been provided and later in that paragraph centre manager says:

‘However, as the Early Childhood Education and Care Regulations state we only keep the enrolment forms up to 3 year [sic – years] after the children cease care at our service, we are unable to locate all of the documents, as the original documents were destroyed at the 3-year mark’, see [‎38].

(e)  In paragraph 3(a) the centre manager states:

‘If both parents have their name on the account agreement forms then both parents would be responsible to pay the account. The parents had their own arrangements for payment to us, as long as payment was made, it was of no consequence to us who paid it.’

The Tribunal understands this is a reference to the apportionment of 65% of the father and 35% to the mother the payment of the Childcare fees as ordered by the Federal circuit Court of Australia in October 2016.

(f)    Importantly, in paragraph 3(b) the centre manager states: ‘If only one parent signs then they are responsible…’.

(g)  The final paragraph of the response from the centre manager states:

‘The court order we have in service was given to us by the parents to help maintain parenting agreement on pick up and drop off days. It was effective from the 12 July 2016 to the 1^st April 2017. The accounts were separated on the 8^th June 2017 Molly [Ms Zhou – the mother] keeping the main account 000–005–258 as it was always under her name with CCB and CCR and Franks [Mr He – the father] was created a new Account number 000–005–748.’

40.  Mr He objected to the Tribunal contacting the ELC to obtain the report from centre manager and provided a seven-page response, in the form of a Supplementary Statement of Facts Issues and Contentions[5]. His report quotes extensively from the ELC report and contradicts its findings. In paragraph E 13, Mr He states:

‘That means the “account holder” is totally irrelevant with the CWA or enrolment pack that was must be signed by the parties as a contract, and is totally irrelevant to who is liable the payment to the childcare service and who can claim the CCB/CCR under the Laws.’

[5] Exhibit 15.

41.  Mr He’s position throughout this matter has been that he paid the childcare fees from January 2016 to June 2017, albeit 65% from November 2016. It seems to Mr He the Temporary Court Orders of July 2016 and the Final Court Orders of October 2016 in which he was initially 100% responsible for the childcare fees and later responsible for 65% of the childcare fees is all that matters. That is, he paid the fees so he should be entitled to the CCB/CCR.

42.  Mr He refers to a letter he received from Centrelink dated 9 November 2017 advising of updated child care payments for the 2016/2017 financial year[6]. That letter does not show the days paid as Mr He asserts. It only shows the total of CCB and CCR he is entitled to. Mr He also refers to a Centrelink schedule for the 2016/2017 financial year[7] as evidence he was liable for the childcare fees because he was paid $53.64 for week 2 ended 17 July 2016 as well as amounts of $107.27 for each of weeks 49 to 52 ended 2 July 2017. The Tribunal notes the week ended 17 July 2016 coincides with the FCCA Temporary Parenting Order, and the entries on the schedule are noted as ‘REJ’, which the Tribunal assumes means rejected for week 1 and ‘CAN’, which the Tribunal assumes means cancelled for all weeks from week 3 to week 48.

[6] Exhibit 1, T Documents, T18, page 182.

[7] Ibid, T21, page 249.

43.  As discussed above at [‎29], the words ‘the liability to pay for the session’ carry their usual meaning, that is, responsible in law. A person liable to pay is a person against whom payment can be enforced.

44.  As discussed above at [‎39(b)], the account holder was always Ms Zhou, the mother, from the original enrolment in January 2016 until Mr He signed and lodged his own enrolment form on 1 June 2017. It was open to Mr He to register his CRN on the account for the Child. He does not dispute this in his evidence and eventually on 1 June 2017 he does sign his own enrolment form and attaches his CRN. He could have done that at an earlier date as was suggested to him by the centre manager, which he does not dispute.

45.  It is irrelevant that Mr He’s name was added to the account as a guardian and his e-mail address was included in the records of the ELC. Those are matters of convenience both for Mr He and the ELC. Despite the protests of Mr He, the account holder is relevant for the purpose of determining who was liable for the session of care, that is, the person against whom payment can be enforced. It is the account holder who is the person liable (responsible in law) for the payment of the fees to the Childcare centre and against whom the Childcare centre could enforce payment.

46.  It is also irrelevant Mr He was paid CCB and CCR for part of the week ending 17 July 2016. Just because he was paid some entitlement for that week doesn’t mean he had incurred a liability to pay for the session of care. No explanation was provided for the payment for the week ended 17 July 2016, and the Tribunal will not speculate as to the reasons. The position of the Respondent remains Mr He was not the account holder until 1 June 2017 and so could not have incurred a liability to pay for a session of care.

47.  It would have been helpful had the original enrolment form from January 2016 been available to the Tribunal. That document would have shown who enrolled the Child and signed the application. For the reasons discussed at [‎38] and [‎39(d)], that document is not available. Mr He has not provided any evidence his name was on the original enrolment form or that he signed it. His evidence at the hearing was he couldn’t remember if his name was on the form or if he signed it. There is also no evidence the Child was re-enrolled in July 2016, so it is likely the Child returned to the ELC under the original enrolment. Absent a copy of the original enrolment form, the best evidence before the Tribunal is the response from the centre manager at the ELC, which says the mother, Ms Zhou, was the account holder.

48.  The Tribunal finds the account holder, and therefore the person who was liable for the fees payable the sessions care for the Child from January 2016 until 1 June 2017, was Ms Zhou (the mother).

49.  The calculation of the CCB and CCR for the Child for the period from January 2016 to 1 June 2017, based on the account holder being the mother and therefore liable for fees, is not in dispute. Accordingly, the Tribunal affirms the decision in Case 1 in respect of the 2016/2017 financial year.

2017/2018 financial year

50.  On 22 January 2018, the Child commenced his prep year at the local state primary school. His last day at the ELC was 5 January 2018. Mr He and the Respondent agree on these facts.

51.  Mr He sought to be paid CCB and CCR from 6 January 2018 to 30 June 2018 on the basis Ms Zhao insisted he pay childcare fees even though the Child did not receive any childcare sessions, rather he was at school. The reasons for that supposed insistence by Ms Zhou were not explained. In any event, the submissions from Mr He, especially Exhibit 2 on which the Tribunal is relying, make no mention of the 2017/2018 financial year so it seems Mr He may no longer be pressing this issue.

52.  As discussed above, s 43(1)(c) and s 44(1)(c) entitle an individual to be paid CCB and CCR if they are liable for a session of care. The issue of who is liable is discussed at length above. The other operative part of these sections requires a session of care to have been provided. If no session of care is provided, it follows no entitlement to CCB and CCR can arise.

53.  The agreed facts relevant to this matter are set out above at [‎50]. That being the case, the Child was not provided with a session of care from 6 January 2018, especially since he was in his prep year from 22 January 2018 at the local state primary school.

54.  Even if Mr He did pay Childcare fees from 6 January 2018 to 30 June 2018, no sessions of care were provided during that time. Accordingly, no liability can arise for a session of care.

55.  For these reasons, the Tribunal finds no entitlement to CCB and CCR arises to Mr He, or anyone else, in respect of the Child from 6 January 2018. Accordingly, the Tribunal affirms the decision in respect of the 2017/2018 financial year.

56.  The decision under review made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 24 September 2020 affirming the decision made by Services Australia (formerly known as the Department of Human Services) (the Agency) is affirmed.

Case 2: CCS for 2018/19 financial year

57.  As noted in the discussion above, the Child ceased attending childcare and commenced his prep year at school in January 2018. His parents enrolled him in both after-school care and vacation care at the centre operated by the local state primary school attended by the Child. The care arrangements for the Child had been 50% to the father, Mr He, and 50% to the mother, Ms Zhou, from 22 January 2018, being the first day of the Child’s prep year at school.

58.  The mother, Ms Zhou, enrolled the Child in the after-school hours (ASHC) care program on the basis she would pay for the sessions of care and claim the CCS. The term 3 holidays that year were from Friday 21 September 2018 to Monday 8 October 2018. Allowing for weekends, the vacation care program ran from:

(a)  Monday 24 September 2018 to Friday 28 September 2018, and

(b)  Monday 1 October 2018 to Friday 5 October 2018.

59.  The Child was enrolled to attend two sessions each week on Thursday and Friday. By 21 September 2018 the application for CCS by Ms Zhou was still not processed. Mr He, who was registered, enrolled the Child in his name to attend vacation care in the September 2018 school holidays for the following days:

(a)  Week 1: Wednesday and Friday, 26 and 28 September 2021, and

(b)  Week 2: Tuesday to Friday, 2 to 5 October 2021.

60.  Due to illness, the Child only attended the vacation care program on Wednesday 26 September 2018 meaning there were five absences from the enrolled dates (ST3, page 24). From 11 October 2018 the Child resumed after-school care two days each week on Thursday and Friday under the mother’s enrolment who by then had been granted entitlement to CCS. ST4 at page 26 shows the Child attended vacation care on 26 September 2018 and was absent on 28 September 2018 with the reason shown as ‘Absence Prior To Enrolment Cease date’. The effect of the above is the last day of enrolment is taken to be 28 September 2018

61.  Mr He had been paid CCS for all six days of the vacation care program for which the Child had been enrolled by the father. Centrelink later cancelled the entitlement to the four days the Child was absent due to illness because more than 42 days had elapsed after the last time the Child attended a session of care, that is, 28 September 2018 to 18 January 2019.

62.  The Child returned to ASHC in term 4 that year under the mother’s enrolment.

63.  The Respondent’s view is the enrolment of the Child by the mother is separate to the enrolment of the Child by the father. As a result, the Respondent says the sessions of care provided to the Child under the father’s enrolment, that is, the September 2018 term 3 holidays, are to be viewed in isolation from the sessions of care provided to the Child under the mother’s enrolment, being the after school hours care provided before and after the September 2018 term 3 school holidays.

64. Where more than one individual would be eligible for CCS, s 85EA of the FA Act provides only one individual can be eligible for the same session of care provided to a Child and such determination is made in writing by the Secretary in accordance with any Minister’s rules. The Secretary can decide (complying with the Minister’s Rules) as to which parent is entitled to subsidy where they are both eligible for the same session of care.

65.  The case here is that the mother enrolled the Child in ASHC and paid the necessary fees, so she entitled to the CCS for those sessions of care. For the reasons stated above, the father enrolled the Child in vacation care for the term 3 school holidays in 2018 and paid the necessary fees so he is entitled to the CCS for those sessions of care.

66.  The provider in this case is Sunnybank Hills State School OSHC, which is a business name owned by Sunnybank Hills State School P&C Assn (ABN 43 164 223 501[8]). That is, the provider of both the ASHC and the vacation care is the same organisation.

[8] ABN means Australian Business Number.

A Service May Not Be Divisible Between OSHC and Vacation Care

67. The Tribunal has considered the meaning of the term “service” within the context of s 200B of the Administration Act (as it was on 2 July 2018), which discusses when a child is enrolled. The Tribunal has also considered whether a service may have a particular legislative meaning, and whether vacation care should be considered a service, and ASHC should be considered a further or separate service.

68. The Administration Act appears to distinguish between providers and a “childcare service”. Reading together s 194G, Meaning of Approved Child Care Service; the approval process in line with s 194D(a), and Schedule 2, Clause 2(3), it seems a provider can provide multiple childcare services across four categories:

• A centre-based day care service

• A family day care service

• An OSHC service

• A type of service prescribed by the Minister’s rules

69.  The meaning of service therefore appears not to distinguish between after-hours care and vacation care. That is also consistent with the approvals provided to SHAC (or, as it is formally known, Sunnybank Hills State School OSHC – see the screenshots in the Case 2 Member File, Screenshots as provided by the Applicant). The Australian Children’s Education & Care Quality Authority records that Sunnybank Hills State School OSHC has an approval for OSHC for After School, Before School and Vacation Care, and includes the conditions on the approval and hours of operation: see Sunnybank Hills State School OSHC | ACECQA.

70. On that basis, a “service” within the meaning of s 200B of the Administration Act does not merely refer to what has been engaged by one parent (and not the other). The proposition might also be taken further in that the Administration Act impliedly accepts that parents might share the cost of a child’s care by relating eligibility to the provision of a session of care, whilst simultaneously ending a child’s enrolment 8 weeks since the child last attended the service’s sessions of care under s 200B.

71.  A session of care is still provided even if the Child does not attend due to illness provided the duration is no longer than 14 weeks from the last date of attendance.[9]

[9] A New Tax System (Family Assistance) (Administration) 1999 section200B(1)(b)(iii); see also Family Assistance Guide 1.1.A.17.

72.  This accords with the Respondent's SFIC – Case 2, para 29, because the Child's enrolment for OSHC appeared to cease on 21 September 2021, as that was the last date of enrolment under the mother’s name. To recap, the Child was then enrolled under the father’s name for vacation care for 26 and 28 September 2018 and four days the following week. The Child was marked as attending on 26 September 2018 but absent on 28 September 2018 despite having been scheduled to attend and the father having paid for the session. The Child returned to school and attended OSHC in term 4 on 11 October 2018[10]. The Administration Act does not distinguish between vacation care and OHSC, these were not separated except for SBH reporting as shown on the “Applicant's Centrelink account screen prints" filed by Mr He on 15 June 2021[11] .

[10] Exhibit 17, T Documents, T8, page 94.

[11] Exhibit 18, Supplementary T Documents, ST4, pages 26, 28.

73.  The Tribunal finds the Applicant is entitled to CCS for the days the Child was absent due to illness from 28 September 2018 to 5 October 2018 because:

(a)  sessions of care were provided and paid for (by the Applicant) during that period even though some were not attended by the Child due to illness;

(b)  sessions of care were provided by the same provider, not a different provider, before and after the period in question with the Child returning to OSHC on 11 October 2018;

(c)   it is irrelevant the Child attended OSHC under the mother’s enrolment and vacation care under the father’s enrolment, with the proviso only one parent can claim for any given session, because they are all sessions of care;

(d)  the gap between the last session of vacation care attend by the Child is therefore 13 days not 8 weeks as asserted by the Respondent.

CONCLUSION

74.  For the reasons given above, the Tribunal finds the Applicant is unsuccessful in Case 1 and successful in Case 2.

DECISION

75.  The decision under review under Tribunal file number 2020/7966, concerning the payment of CCB and CCR to Mr He in the 2016/2017 and 2017/2018 financial years (Case 1) is affirmed, and the decision under review under Tribunal file number 2021/0251, concerning the payment of CCS to Mr He in the 2018/2019 financial year (Case 2) is set aside and in substitution the Tribunal finds the Applicant Mr He is entitled to be paid CCS for the period 28 September 2018 to 5 October 2018.

1.       I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

………………[SGD]…………………………..
Associate
Dated: 19 November 2021

Date of Hearing:	5 July 2021
Applicant:	In Person
Solicitor for the Respondent:	Mills Oakley Lawyers