Kelly and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 1030

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1030

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2044

GENERAL ADMINISTRATIVE DIVISION		)
Re		EBITHEA KELLY

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date17 November 2008

PlaceBrisbane (heard in Cairns)

Decision The Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Family tax benefit – Eligibility – Family tax benefit child deceased – Whether child was in applicant’s day-to-day care – Child in foster care – Applicant consulted about child’s education and health care – Child was not in applicant’s day-to-day care – Decision affirmed

A New Tax System (Family Assistance) Act 1999 (Cth), ss 22(2), 31

REASONS FOR DECISION

17 November 2008 Senior Member Bernard J McCabe         

1.      Jessica Kelly died in hospital when she was nine years old. She had been sick her entire life. Her health was so bad that her parents, Ebithea and Terry Kelly, felt compelled to ask the Queensland Department of Child Safety to assist in providing the care Jessica required. Jessica was placed in the care of a foster parent in 2006. She lived with the foster parent until she was hospitalised before her death on 18 August 2007.

2.      Mr and Mrs Kelly did not receive family tax benefit (“FTB”) in respect of Jessica after she was taken into care. FTB was paid to the foster parent. Mr and Mrs Kelly say they are entitled to be paid what is commonly known as a bereavement payment – an amount equal to 14 weeks FTB – following Jessica’s death. They want to meet outstanding commitments in respect of funeral expenses. The Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs, the respondent, says Mr and Mrs Kelly are not eligible to receive the payment. Mrs Kelly, the applicant in these proceedings, has asked the Tribunal to reconsider the matter.

3. The decision turns on the meaning of the expression “day-to-day care” used in s 22(2) of the A New Tax System (Family Assistance) Act 1999 (“the Act”). That section determines who is eligible to receive FTB. If a person is eligible to receive FTB in respect of a child and the child dies, s 31 says the person is entitled to continue receiving FTB payments for 14 weeks following the death of the child if the other requirements of the section have been satisfied.

4. For reasons I will explain, I cannot be satisfied Mrs Kelly and her husband were entitled to receive FTB in respect of Jessica once she had been taken into care. That means there is no entitlement to a bereavement payment under s 31. I explain my reasons below.

The facts

5.      Jessica Kelly struggled with serious health problems throughout her life. Mr Kelly spoke at the hearing about her spirit and character. Her health challenges were such that the family had difficulty coping with her needs. As she grew older, Mr and Mrs Kelly said they felt compelled to approach the authorities for assistance. Jessica was placed in foster care on 22 March 2006. She did not live with her parents after that date. The Beenleigh Children’s Court made a child protection order in 8 March 2007.

6.      I was shown a number of documents detailing the arrangements between Mr and Mrs Kelly and the Department of Child Safety in relation to Jessica’s care. It appears the Kellys remained Jessica’s guardians. They had the right to be consulted about a range of matters, including decisions in connection with her education and her health care. Mr Kelly said he was contacted routinely by officers of the Department of Child Safety in connection with medical treatment. When she was very sick before she died, the hospital asked him for consent to undertake medical procedures. He was also asked about a proposal that Jessica change schools. Mr Kelly said the Department of Child Safety accepted his view that Jessica should not be moved.

7.      Mr Kelly agreed he and his wife did not have day-to-day care of Jessica after she was taken into foster care but he insisted they retained the right to make decisions about many aspects of Jessica’s life. He pointed out the protection order made on 8 March 2007 was for a term of two years. He said it was always understood that Jessica would return home to her family once they were in a position to care properly for her.

8.      Mr Kelly also pointed out he needed the bereavement payment to meet the expenses associated with the funeral. He and his wife wanted Jessica to rest comfortably. He said he was also concerned to fulfil his obligations to his other children.

The legislation

9. An FTB payment can only be made to a person in respect of someone who is an “FTB child” of that person. Section 22(2) of the Act explains what is required to be considered an FTB child of someone else. Most of the criteria are met in this case, but one criterion in particular is in issue. Section 22(2)(b) requires that the adult (ie, Mrs Kelly) is “legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual”. I note s 22(2)(c) goes on to require that “the individual is in the adult’s care”.

10.     Mr and Mrs Kelly cannot satisfy the requirement in s 22(2)(c) because it cannot be said Jessica was in their care in the in the months prior to her death. She was in the care of the foster parent. Mr and Mrs Kelly lived some distance away in north Queensland, although I accept they were frequent visitors to Brisbane where Jessica resided.

11. I do not think Mr and Mrs Kelly can satisfy the requirement in s 22(2)(b) either. While they had input into important decisions and may have had an expectation that Jessica would return to their care in the longer term, day-to-day decision-making was in the hands of the foster parent. Mr and Mrs Kelly were consulted about important matters like education and health care, but the smaller details of daily life, like what to wear, when to eat, what to watch on television and when to go to bed were matters within the control of the foster parent. The legislation is intended to provide money to the person who has the responsibility and the expense associated with looking after the child on a daily basis. While Mr and Mrs Kelly remained responsible for certain important matters, they were relieved of the routine and costly responsibilities contemplated in the Act when Jessica went into care.

12.     Mr and Mrs Kelly made it clear they did not expect to receive FTB for the period during which Jessica was in care. Their object was to obtain the bereavement payment with a view to meeting funeral expenses now that Jessica had, in their words, come home to them. I assume the bereavement payment is meant to provide a means of meeting precisely those kinds of expenses. It is unfortunate they are unable to access funds intended for that purpose. I do not know whether the foster parent received the bereavement payment. Mr and Mrs Kelly were under the impression that the payment was made. If so, I infer the payment was not made available to cover the funeral expenses.

13. Centrelink and the Tribunal must apply the legislation in any event. Section 31 says a person remains eligible to receive FTB in respect of a child for 14 weeks after the death of that child if the person was already in receipt of FTB payments and certain other conditions are satisfied. While there does not appear to be an issue in relation to the other conditions, Mr and Mrs Kelly were not eligible to receive FTB in the period immediately before Jessica’s death. It follows that they cannot remain eligible and continue to receive FTB. The bereavement payment is therefore unavailable.

Conclusion

14.     Mr and Mrs Kelly have a legitimate interest in obtaining the bereavement payment to assist them to meet costs they have incurred in connection with Jessica’s funeral arrangements. Unfortunately, for technical reasons, the money is not available. The decision under review must therefore be affirmed.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:.................................[Sgd].............................................
  Michael Buckingham, Associate

Date of Hearing  4 November2008
Date of Decision  17 November 2008
Applicant was self-represented, assisted by Mr T Kelly   
Advocate for the respondent    Mr Joe Guthrie, Centrelink