Ketchum and Secretary, Department of Social Services (Social security)
[2024] ARTA 472
•24 October 2024
Ketchum and Secretary, Department of Social Services (Social security) [2024] ARTA 472 (24 October 2024)
Applicant/s: Dr Ketchum
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/C189504
Tribunal: Member K Hamilton
Place:Brisbane
Date:24 October 2024
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
SOCIAL SECURITY – child care subsidy – applicant absent from Australia and subsidy reduced to zero after maximum portability period – special circumstances – father-in-law’s health – condition diagnosed before applicant’s travel – no intention to return within applicable period – consent to decision on papers – 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 subsections 161(1B) of the A New Tax System (Family Assistance) (Administration) Act 1999.
Statement of Reasons
BACKGROUND
This matter relates to a decision of Services Australia – Centrelink (Centrelink) to reduce Mr Ketchum’s rate of child care subsidy (CCS) to zero from 14 January 2024.
Mr Ketchum was in receipt of CCS before departing Australia on 3 December 2023.
On 14 January 2024, Mr Ketchum’s rate of CCS was reduced to zero on the basis that he had reached the end of the maximum portability period and had not returned to Australia.
On 2 February 2024, Mr Ketchum returned to Australia. His CCS was reinstated from that date.
Mr Ketchum sought review of the decision to reduce his rate of CCS from 14 January 2024 and on 19 February 2024, a Centrelink authorised review officer (ARO) affirmed the decision. On 3 July 2024, Mr Ketchum applied to the Administrative Appeals Tribunal (AAT) for independent review.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
At Mr Ketchum’s request, the matter was heard on the papers on 24 October 2024.
The Tribunal had regard to the following documents:
·documents prepared by Centrelink as being relevant to the decision under review, numbered as pages 1-73;
·additional documents submitted to the Tribunal by Mr Ketchum, numbered by the Tribunal as pages A1-A21.
ISSUES
The statutory provisions relevant to this review are contained in the A New Tax System (Family Assistance) Act 1999 (the Act).
The issue which arises in this case is whether Mr Ketchum was eligible for CCS during his absence from Australia.
CONSIDERATION
CCS is a payment made to assist families with the costs of child care. Section 85BA of the Act sets out the eligibility criteria for CCS.
Section 85EE of the Act sets out the maximum period for which CCS can be payable to an individual during an absence from Australia. Subsection 85EE(1) provides that the maximum period is 6 weeks beginning on the first day of the person’s absence, unless the period is extended on the basis that the individual is unable to return to Australia because of an event of the type specified in subsections 85EE(3)–(6). This includes, relevant to this application, that the individual or a family member of the individual has been involved in a serious accident, is suffering a serious illness, is hospitalised or dies (paragraphs 85EE(3)(a)–(d)).
Subsection 85EE(4) further provides that (other than in cases of political or social unrest, industrial action or war in the country in which the individual is located), the initial period of 6 weeks may not be extended under subsection 85EE(3) unless the event occurred or began during the initial 6 week period.
Mr Ketchum left Australia on 3 December 2023. The initial 6 week period therefore expired on 14 January 2024. Mr Ketchum was not eligible for CCS after 14 January 2024 unless he satisfied one of the grounds for extending this period set out in subsection 85EE(3).
Mr Ketchum’s application to the Tribunal stated that his absence from Australia was due to his father-in-law’s cancer diagnosis. Mr Ketchum said that he and his wife were required to travel to provide care and support to his father-in-law. Mr Ketchum said in his application that the family booked return tickets for December 2024 in order to support his father-in-law and manage his leave from work. The date of December 2024 appears to have been provided in error as Centrelink’s documents include a copy of a travel itinerary provided by Mr Ketchum. This confirms an online booking made on 25 November 2023 departing Sydney on 3 December 2023 and returning on 2 February 2024.
Mr Ketchum provided the following supporting documentation to the Tribunal:
·Medical certificate from the [Institute] dated 29 March 2021. The certificate states that [Mr A] was diagnosed with [a condition] and underwent surgery on 9 March 2021. He was discharged on 25 March 2021.
·Medical certificate from [Hospital & Diagnostic Centre] dated 1 May 2024. This certificate states that [Mr A] “has been under continuous medical care since March 9, 2021 following his diagnosis of a [condition] ….[Mr A] has been deemed not medically fit to engage in his daily activities continuously from March 9, 2021, to the present date. This includes specific periods such as from December 5, 2023, to January 29, 2024”.
·Various letters from the [Institute] to the [Country] High Commission, as follows:
oLetter dated 7 November 2023 seeking visa approval in order to attend appointments on 2 February 2024 for consultation and “necessary treatment”;
oLetter dated 5 June 2023 confirming review check up on 10 July 2023 (30 day period required);
oLetter dated 17 September 2022 confirming review check up on 7 November 2022 (10 day period required);
oLetter dated 3 May 2022 confirming review check up on 9 May 2022 (10 day period required);
oLetter dated 9 February 2021 confirming appointment on 24 February 2021 for evaluation and treatment following diagnosis of [condition] (30 day period required).
It is apparent that [Mr A] was suffering from a serious illness, however this condition was longstanding and was first diagnosed in 2021. The evidence shows regular follow ups occurring over subsequent years, but does not indicate that any new diagnosis had been made, or any serious illness had begun, within the initial 6 week period.
I am not satisfied on the evidence before me that [Mr A]’s serious illness occurred or began within the period 3 December 2023 to 14 January 2024. Further, Mr Ketchum’s travel arrangements made in November 2023 indicate that he had no intention at that time to return to Australia until after the initial 6 week period had expired. He was not unable to return to Australia due to an unexpected serious accident, serious illness or hospitalisation of his father-in-law that occurred during the initial 6 week period.
Accordingly, I find that Mr Ketchum did not satisfy subsections 85EE(3) or (4) of the Act and the maximum portability period for CCS cannot be extended past 14 January 2024.
As I have reached the same conclusion as Centrelink, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision under review.
| Date(s) of hearing: | Thursday, 24 October 2024 |
| Representative for the Applicant: | Self |
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