Hughes and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by Ms Hughes against a decision by the Secretary of the Department of Social Services regarding her eligibility for Family Tax Benefit (FTB) for her son, Joseph. Ms Hughes had given birth to Joseph overseas while she was an Australian resident. The central dispute revolved around the application of the portability provisions under section 24 of the relevant legislation to Ms Hughes's circumstances, specifically concerning the calculation of the 56-week portability period. The case was heard by Mark Hyman, Member.

The primary legal issue before the Tribunal was to determine the correct application of section 24 of the Act, particularly subsections (1) to (6), to Ms Hughes's extended absence from Australia and the birth of her child overseas. This involved ascertaining whether the portability period for the individual (Ms Hughes) or the child (Joseph) was the operative provision, and how Ms Hughes's periods of absence from and return to Australia affected the calculation of the 56-week limit before FTB eligibility ceased. The Tribunal was required to consider the interplay between provisions dealing with the child's status and those concerning the individual's eligibility for FTB.

The Tribunal reasoned that section 24 of the Act distinguishes between provisions that determine a child's status as an FTB child (subsections (1)-(3)) and those that govern the individual's eligibility for FTB in respect of an FTB child (subsections (4)-(6)). It was clarified that subsection (1) applies to the child's status, while subsection (4) applies to the individual's portability. The Tribunal found that Ms Hughes's absence from Australia from July 2013, followed by a return of less than six weeks, meant that this absence counted towards the 56-week portability limit under subsection 24(4). Consequently, her portability period expired on 4 August 2014, 56 weeks after her initial departure. As FTB could only be paid upon her return to Australia, eligibility commenced from 17 December 2016.