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

This matter concerned an appeal by JTCV against a decision of the Secretary of the Department of Social Services regarding the calculation of JTCV's percentage of care for a child, 'A', for the purposes of family tax benefit. The dispute centred on whether the pattern of care should be determined by the number of nights a child spends in care or by the actual hours of care provided. The decision was made by Dr L Bygrave, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the correct method for calculating the percentage of care for 'A' under the relevant social security legislation and policy. Specifically, the Tribunal had to consider whether the general rule of basing care arrangements on the number of nights a child is in care applied, or if the circumstances warranted the application of an exception allowing for the calculation of care based on actual hours. This involved interpreting the guidance provided in the relevant government policy document, known as 'the Guide'.

The Tribunal reasoned that, in accordance with the Guide, a pattern of care is generally determined by the number of nights a child has overnight care, as this is considered to equate to having care for that day. While the Guide allows for the use of actual hours of care in exceptional circumstances where counting nights does not accurately reflect the caring arrangements, the Tribunal found that JTCV had not provided sufficient evidence to demonstrate such an inaccuracy. JTCV's submissions regarding additional nights of care and the interpretation of school holiday arrangements were considered, but ultimately, the Tribunal concluded that there was no basis to depart from the standard method of counting nights.

Consequently, the Tribunal set aside the original decision and substituted its own finding that JTCV's percentage of care was 33% and PLVJ's percentage of care was 67% for the 12-month period from 28 November 2017.