McDonald-Wooding; Secretary, Department of Social Services and (Social services second review)

McDonald-Wooding; Secretary, Department of Social Services and (Social services second review) [2023] AATA 2860 (8 September 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10632
Re:Secretary, Department of Social Services
APPLICANT

AndMs Katherine McDonald-Wooding
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:8 September 2023
Place:Melbourne

The Tribunal sets aside the decision of the Social Security Division of the Tribunal and in substitution determines that Ms McDonald-Wooding was not entitled to Child Care Subsidy for her son from the 12 April 2022 as she had not lodged an effective claim under section 67BE of the A New Tax System (Family Assistance) (Administration) Act 1999.
...........................[sgd].............................................
Ms A E Burke AO, Member
CHILD CARE SUBSIDY – whether applicant entitled to child care subsidy – whether an effective claim was lodged – whether incorrect advice provided by Centrelink – decision of the AAT1 set aside and substituted for the original determination
Legislation
Administrative Appeals Tribunal Act 1975
A New Tax System (Family Assistance) Act 1991
A New Tax System (Family Assistance) (Administration) Act 1999
Cases
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms A E Burke AO, Member

The Secretary is seeking a second-tier review of the determination of Social Services & Child Support Division of the Tribunal (Tier 1) that Ms McDonald-Wooding was entitled to Child Care Subsidy (CCS) from 12 April 2022. The AAT1 determined Ms McDonald-Wooding had made an effective claim for CCS on 12 April 2022, fulfilling the requirements of section 67BE of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).
As the application was a determination of the law alone the matter was heard on the papers on 1 September 2023. Mr Tim de Uray, Deputy General Counsel in the Litigation Branch, Department of Human Services appeared for the applicant and Ms McDonald-Wooding the respondent was self-represented.
BACKGROUND
On 22 February 2019 Ms McDonald-Wooding submitted a claim for CCS for her daughter born on 4 May 2018, as she was working part time and studying full time.
On 13 April 2022 Centrelink records indicate Ms McDonald-Wooding attended her local Centrelink office to enquire about family tax benefit; the file note records:
Assisted customer with confimring CC enrolement as unable to complete online
On 19 May 2022 Ms McDonald-Wooding submitted a claim for CCS for her son born on 1 November 2021.
In a letter dated 20 May 2022 Centrelink advised Ms McDonald-Wooding they had finalised her CCS assessment from 2 May 2022 for her daughter and son.
On 22 June 2022 Ms McDonald-Wooding contacted Centrelink, the file note records:
Customer has uploaded complaint/statement re CCS and is requesting CCS to be back paid from when son started child care 11.04.2022. Customer has advised went to SC in Warragul 12.04.2022 and they advised enrollment was confirmed for son and CCS would "kick in" within a couple of weeks however there was no claim or CCS current for Txt: son. Customer then went online and found out how to add child to CCS 19.05.2022 and submitted the claim. Claim was processed and back paid to the nearest CCS monday 02.05.2022. Customer is not happy as was told she didnt need to do anything else on 12.04.2022 and the back pay received does not cover all out of pocket expenses and is requesting further back pay to 11.04.2022
On 26 July 2022 on internal review, an Authorised Review Officer (ARO) affirmed the earlier Centrelink decision to not grant Ms McDonald-Wooding payment of CCS from a date earlier than 2 May 2022. The ARO provided the following reasons for their determination:
To receive Child Care Subsidy for a child you or your partner must be liable to pay child care fees for the child under a complying written arrangement. The child must:
• be 13 years of age or younger
• be your or your partner's Family Tax Benefit or a regular care child
• not be in secondary school or have an exemption
• attend an approved child care service
• meet immunisation requirements or have an exemption.
When a claim is granted, Child Care Subsidy is paid from the date the person becomes eligible. This earliest date this can be from is the first Monday of a Child Care Subsidy fortnight, in the 28 days prior to the claim being submitted.
You submitted a claim for Child Care Subsidy for (your son) on 19 May 2022. This claim was granted from 2 May 2022, being the first Monday of a Child Care Subsidy fortnight within the 28 days prior to your claim being made. This is the maximum backdating available.
You advised that you had tried to accept Austin’s enrolment online but had not been able to do this. You attended the local Service Centre on 13 April 2022 and they accepted (your son’s) enrolment on your behalf. You advised that had you been told that you needed to lodge a claim for Child Care Subsidy for Austin at that time you would have done this.
The law does not provide me with any discretion to change the start date of your Child Care Subsidy for (your son), based on this claim, for any reason.
On 30 November 2022 the AAT1 set aside the decision under review and, in substitution, decides that Ms McDonald-Wooding made an effective claim for child care subsidy on 12 April 2022. The Member stated:
Having had regard to all of the evidence the Tribunal is satisfied that by attending the Centrelink office at Warragul on 12 April 2022, and seeking and receiving assistance from the Centrelink staff to lodge her claim for CCS, that pursuant to section 67BE, Miss McDonald-Wooding made an effective claim.
Therefore, the Tribunal is satisfied that Miss McDonald-Wooding should be paid child care subsidy from 12 April 2022.
On 15 December 2022, the Secretary requested a review of the Tier 1 decision by the General and Other Divisions of the Tribunal (Tier 2) as they believed:
The Social Security & Child Support Division erred in finding that an effective claim for child care subsidy was made on 12 April 2022.
LEGISLATION
The Guide at 1.2.6 outlines the CCS aims to:
assist families with the cost of child care
facilitate individuals to participate, or increase their participation, in the workforce
facilitate children's attendance in child care to support their early learning and development.
The Guide at 4.6.1 outlines the general provisions for making a claim for CCS by fee reduction
Claim process
An individual must make a claim in respect of a child to be eligible and entitled to be paid CCS or ACCS. The CCS claim process involves 4 main functions:
·determining if a claim is effective,
·where a claim is effective, making an initial determination of eligibility based on whether the individual and their partner (if applicable) meets the basic eligibility requirement, and
·collecting additional information needed to determine how much CCS or ACCS an individual is entitled to be paid for eligible sessions of care provided to the child/ren.
·determining if the individual is eligible to be paid ACCS (grandparent)
Who should make a CCS claim?
Only individuals can make a claim for CCS. ….
When individuals should make a claim for CCS
Individuals should lodge their CCS claim either before, or as soon as possible after, enrolling their child for care with an approved child care service. As the date of effect for an initial determination of entitlement can only be backdated to the first Monday of a CCS fortnight that is not more than 28 days before the claim was made, individuals may be disadvantaged if they do not lodge their claim promptly.
A claim can remain active for up to 52 consecutive weeks without the individual receiving CCS or ACCS.
How individuals can make a claim for CCS
Most individuals will lodge and manage their CCS claim using Centrelink Online Services.
Individuals who cannot access this service have alternative options to make a CCS claim with Centrelink, including staff assisted processes over the phone or in person at a Centrelink office.
The Guide at 4.6.1.10 outlines when a claim is effective
To make an effective claim for CCS by fee reduction, individuals must:
·submit a CCS claim form with all relevant questions answered through Centrelink Online, in person or over the phone, and
·submit all relevant supporting documentation (if required).
Where an individual has provided documentary evidence or 'free text' information (e.g. in relation to an application for exceptional circumstances) to support their online CCS claim, it will be manually assessed to determine if it is effective.
If the claim is effective the individual will receive an acknowledgement in writing of receipt of the claim.
Claims that are not effective
If a claim is not effective, it considered not to have been made, will not be assessed, and no CCS payments can be made. The individual will receive a notification in writing, which will include the reason it was not effective.
Claims that are not effective are also considered not to have been made for the purposes of review and appeal.
Information required when claiming CCS
Information individuals must provide to make an effective claim includes:
·personal details for themselves and their partner, such as address and DOB
·personal details of the child/ren for whom the claim is made, such as name and DOB
·details required to establish whether the individual meets the CCS core eligibility requirements
o   FTB/regular care child (through questions about the percentage of care the individual provides for that child)
o   residency requirements
o   child's age and education level
o   immunisation status (through the child's Medicare number)
·details of recognised activities being undertaken by the individual, and their partner if they have one
·estimated ATI for the individual and their partner, if they have one,
·TFN of the individual and their partner, if they have one*
·the individuals bank account details*
·additional information required for claiming ACCS (grandparent) (if applicable).
The Guide at 2.6.5.10 outlines the requirement for individuals to confirm their child’s enrolment at an approved child care service
Individual confirmation process
After the approved provider submits an enrolment notice for a child, the individual will be notified and asked to review the enrolment details. The individual must action this request as a pre-condition to determinations of entitlement being made for sessions of care reported under that enrolment
This process will confirm that the individual indicated in the enrolment notice, or their partner, is liable to pay for care provided to the child under the enrolment, which is a CCS eligibility requirement.
Additionally, as individuals' CCS or ACCS entitlement is paid directly to approved providers on their behalf, the parent confirmation process allows inaccurate enrolment details, and enrolments submitted either in error, or fraudulently, to be identified and corrected before entitlement is paid.
This process will usually occur through the individual's Centrelink online account or Express Plus mobile app. An individual can also confirm their enrolment over the phone with Centrelink, or in person by visiting a Centrelink office.
The enrolment confirmation process requires the individual to do 1 of the following:
·confirm the enrolment - if they agree that the details are correct,
·indicate 1 or more details are incorrect - if they do not reflect their arrangement with the provider, or
·indicate the child is not enrolled at the service.
The approved provider will be notified of the outcome following the individual's action.
The approved provider can begin submitting session reports before the individual reviews or confirms the enrolment. Once the enrolment is confirmed, the individual's CCS or ACCS entitlement will be calculated for sessions submitted and payments can begin.
Section 67BE of the Administration Act outlines when a claim is effective
(1)A claim made by an individual in respect of a child for CCS is effective if
(a) the claim is made in a form and manner approved by the Secretary; and
(b) the claim contains the information, and is accompanied by the documents, required by the Secretary; and
(c)the claim contains details of a bank account, maintained by the individual alone or jointly with someone else, into which amounts of CCS or ACCS can be paid; and
(d)unless paragraph (e) applies—the claim contains the tax file number of each TFN claim person; and
(e)if the claim is for CCS in substitution for an individual who has died—the claim contains the tax file number of each TFN substitution person; and
(f)if the claim is for CCS in substitution for an individual who has died—the claim is made before the end of the income year after the income year in which the individual died; and
(g)any other requirements in the Secretary’s rules are met; and
(h)no other provision in this Division prevents the claim being effective.
(2)The Secretary may make a written determination that paragraph (1)(d) does not apply in relation to a claim for 28 days after the day the determination is made, if the Secretary is satisfied that it is appropriate in the circumstances to do so.
(3)If:
(a)a determination under subsection (2) is made in relation to a claim; and
(b)the Secretary is satisfied that it is appropriate in the circumstances that paragraph (1)(d) not apply in relation to the claim indefinitely;
the Secretary may, before the end of the 28 days after the day the determination is made, make a further written determination accordingly.
Section 67CD of the Administration Act outlines the Determination of individual’s entitlement to be paid CCS
Preconditions for making determinations
(1)The Secretary may make a determination under this section for an individual for a week, in relation to sessions of care provided to a child by an approved child care service, only if:
(a)a determination that the individual is eligible for CCS by fee reduction for the child is in effect under paragraph 67CC(1)(a) in relation to any day in the week; and
(b)the provider of the service has given the Secretary a report under section 204B (requirement to report about children for whom care is provided) in relation to the child for the week, including such a report as varied, substituted or corrected under subsection 204B(6) or section 204C; and
(e)if the Secretary gives the individual a notice under subsection (11) in relation to the child’s enrolment for those sessions—the individual has complied with the notice.
(1A) For the purposes of paragraph (1)(b), the provider of the service is taken to have given the Secretary a report under section 204B in relation to the child for the week even if the report is not given by the day required under paragraph 204B(2)(d).
Note: The report must still be given in accordance with paragraphs 204B(2)(a), (b) and (c), and the information included in the report as required by those provisions must be accurate and complete (see subsection 204B(3)).
Entitlement to be paid CCS
(2)If the Secretary is satisfied that:
(a)the individual is eligible for CCS under section 85BA of the Family Assistance Act for one or more of the sessions of care provided by the service to the child in the week, or would be eligible except that a session of care is provided on a day in an immunisation grace period for the child (see subsection (9)); and
(b)the individual meets the information requirements in subsection (10) for the week; and
(c)none of subsections (3), (4) and (6) apply in relation to the sessions of care; and
(d)the amount of CCS to which the individual will become entitled for the sessions of care is more than nil;
the Secretary must determine:
(e)that the individual is entitled to be paid CCS for the sessions of care referred to in paragraph (a); and
(f)the amount of CCS the individual is entitled to be paid.
…..
Notice requiring information about enrolments
(11)For paragraph (1)(e), the Secretary may, by written notice, require an individual to give to the Secretary, in a form and manner approved by the Secretary, information stated in the notice in relation to the child’s enrolment for sessions of care provided, or to be provided, by an approved child care service.
ISSUES
From what date was Ms McDonald-Wooding entitled to receive CCS for her son?
CONTENTION
The Secretary contended Ms McDonald-Wooding had not made an effective claim for CCS on 12 April 2022 and was not entitled to receive CCS benefit from that date.
The Secretary contended Ms McDonald-Wooding made an effective claim for CCS on 19 May 2022 when she added all the information that was requested of her online, with a grant date of 2 May 2022, being the first Monday of a CCS fortnight within the 28 days prior to her claim being made: subsection 67CC(4) of the Administration Act.
The Secretary submitted:
(i)an effective claim for CCS must be made in a form and manner approved by the Secretary and contains the information and documents requested by the Secretary under Section 67BE of the Administration Act.
(ii)the Family Assistance Guide at Instruction 4.6.1.10 is consistent with section 67BE in that an effective claim for CCS requires a claim form that is submitted with all relevant questions answered, in addition to all relevant supporting documentation if required.
(iii)if an individual makes an effective claim for CCS, the Secretary must determine either that the individual is eligible for CCS by fee reduction for the child or that the individual is not eligible for CCS by fee reduction for the child: subsection 67CC(1).
(iv)to be paid amounts of CCS for child care provided by an approved child care service to the child, a section 67CC determination of entitlement is not sufficient. The individual must also have complied with any notice given to the individual by the Secretary under subsection 67CD(11): paragraph 67CD(1)(e). This is a separate process from making a claim for CCS under section 67BO.
(v)The Secretary routinely issues notices under subsection 67CD(11) requiring individuals to confirm a child's enrolment for care with an approved child care service; as outlined in the social security guide at 2.6.5.10
The Secretary contended that on 12 April 2022, Ms McDonald Wooding attended a Centrelink office for assistance in confirming an enrolment under subsection 67CD(11), and was given assistance to do so. This is consistent with both Ms McDonald-Wooding's evidence and the notation on Ms McDonald-Wooding's Centrelink record, which stated that she had been assisted with "confirming CC [child care] enrolment."
The Secretary contended there was no evidence to suggest that Ms McDonald-Wooding sought or received advice on making a claim for CCS under section 67BD at the Warragul Centrelink office on 12 April 2022. The relevant evidence consistently refers to assistance with the 'enrolment' and not the 'claim'. The Secretary contends that the AAT1 reached its findings by incorrectly conflating the process of making a claim under section 678D with the process of confirming an enrolment under subsection 67CD(11).
The Secretary contended Ms McDonald-Wooding subsequently logged into myGov on 19 May 2022 and by her own admission, added all the information that was requested for her CCS claim; to be an effective claim.
The Secretary submitted it remains an option for Ms McDonald-Wooding to make a Claim for Defective Administration (CCDA).
Ms McDonald-Wooding did not make a formal submission to these proceedings but had advised the AAT1
(a)that she first completed the online enrolment information for her son in February/March 2022, conceded that at the time she waited for it to “go through” and she meant to go back later and check on it, but other demands took over.
(b)On 11 April 2022 she returned to work (at the child care centre where her son was enrolled). It was then that she realised the enrolment had not been processed by Centrelink.
(c)On the following day, 12 April 2022, she went into the Centrelink office and explained to the Centrelink officer that Centrelink’s online system was not accepting her son’s enrolment information. The Centrelink officer asked her to show her the problem on their computer – which she did. The Centrelink officer then tried to do it herself but encountered the same problem.
(d)The Centrelink officer then sought assistance from her manager, who came over and showed the officer a different way to register the enrolment on their in-house system.
(e)She claimed the Centrelink officer then told her that she had done everything she needed to do, and it would probably “take a few weeks to kick in”. At no stage did the Centrelink officer advise her that she had any more information to provide and/or forms to complete. She believed that she had lodged her claim for CCS.
(f)That she did not hear anything further from Centrelink – she did not receive any further advice or confirmation; nor was she requested to provide any further information or details.
(g)The administration officer at the child care centre advised her a few weeks later that they had still not received any advice or payments from Centrelink. She was aware that the normal advice from Centrelink took four to six weeks to process material, so she left it until 19 May 2022 to log back into her myGov account to see if the CCS had been added to her account. It was then that she became aware of a link to apply to add another child to a claim and she added her son’s details.
(h)On 24 May 2022 she received one lump sum payment of $1056.40, which was not enough to cover her outstanding balance of childcare fees. On 26 May 2022 she went back to the Centrelink office to question why she had not received the full amount of CCS. The office advised her that no-one could assist her as they didn’t have anyone at the office who was a family specialist.
(i)That when she managed to get through to an appropriate Centrelink officer on the telephone, she explained what had happened and was informed that there was nothing they could do as she had lodged her claim late; however, she could lodge a complaint if she wanted the outcome changed.
(j)She was still baffled by the whole process and believed that by actually attending at a Centrelink office and explaining her problem with their myGov system and then their assistance to complete the application; that she should have been able to rely on their advice that she had done everything she needed to do; and if they subsequently found that there was more to do, that they should have advised her accordingly.
CONSIDERATION

There is no dispute that at all times Ms McDonald-Wooding was eligible for the payment of CCS for her son. However, this does not necessarily mean Ms McDonald-Wooding was entitled to the payment. Before a person can receive a social security payment: they must be qualified for the payment, and the payment must be payable.
CCS is only payable when an individual makes an effective claim. For a CCS claim to be effective an individual must provide all the relevant information required by Centrelink to determine their eligibility for the payment. The Information individuals must provide to make an effective claim includes:
·personal details for themselves and their partner, such as address and DOB
·personal details of the child/ren for whom the claim is made, such as name and DOB
·details required to establish whether the individual meets the CCS core eligibility requirements
o   FTB/regular care child (through questions about the percentage of care the individual provides for that child)
o   residency requirements
o   child's age and education level
o   immunisation status (through the child's Medicare number)
·details of recognised activities being undertaken by the individual, and their partner if they have one
·estimated ATI for the individual and their partner, if they have one,
·TFN of the individual and their partner, if they have one*
·the individuals bank account details*
·additional information required for claiming ACCS (grandparent) (if applicable).
The Tribunal was not satisfied on the evidence that Ms McDonald-Wooding had submitted an effective claim on the 12 April 2022. The file note of the Centrelink officer indicates Ms McDonald-Wooding was assisted to enrol her son for child care but it does record that all the other relevant material was input at the time to make an effective claim for CCS.
The Tribunal was satisfied on the evidence that Ms McDonald-Wooding made an effective claim for CCS on 19 May 2022 when she accessed her myGov account and provided all the relevant information required to be eligible for CCS in accordance with subsection 67CC(4) of the Administration Act.
As the Tribunal has found Ms McDonald-Wooding had not made an effective claim prior to 19 May 2022 she is not entitled to CCS payments earlier than 2 May 2022.
The Tribunal determines on all the evidence before it that the original determination that Ms McDonald-Wooding was entitled to CCS from 2 May 2022 is the correct and preferable decision.
The Tribunal appreciates Ms McDonald-Wooding will be aggrieved by this determination particularly as she had a successful outcome at the first tier of the Tribunal.
The Tribunal is very sympathetic to Ms McDonald-Wooding’s plight and can fully appreciate she is rightly aggrieved by this whole process. The Tribunal accepts navigating Centrelink requirements for any payment can be confusing, time consuming and frustrating; and accessing CCS can be particularly onerous. The Tribunal in this case would urge Ms McDonald-Wooding to pursue a claim for Compensation of Detriment caused by Defective Administration (the CDDA Scheme).
POSSIBLE RECOURSE FOR THE APPLICANT
The Tribunal has determined the decision of the Social Security and Child Support Division Tribunal (Tier 1) was incorrect and that Ms McDonald-Wooding was not entitled to CCS from 12 April 2022. As such, Ms McDonald-Wooding has been found not to be entitled to CCS payments from 12 April 2022 until 2 May 2022 when she subsequently made an effective claim online via her myGov account on 19 May 2022.
Given Ms McDonald-Wooding’s firm belief she had been assisted by Centrelink not only to register her second child but to make an effective claim for CCS, the Tribunal reiterates it is open to Ms McDonald-Wooding to seek redress by making a claim for compensation under the CDDA Scheme, which is administered by the Department of Finance. Defective administration is defined as:
- a specific and unreasonable lapse in complying with existing administrative procedures; or
- an unreasonable failure to institute appropriate administrative procedures; or
- an unreasonable failure to give to (or for) an applicant, the proper advice that was within the officer's power and knowledge to give (or reasonably capable of being obtained by the officer to give); or
- giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous.
The Respondent also acknowledged Ms McDonald-Wooding could pursue a claim under CDDA as an avenue to seek compensation and submitted it was open to her to lodge a claim.
It should be noted that a claim for CDDA is an avenue of last resort when there is no other avenue of redress available. As such, given the Tribunal has found against Ms McDonald-Wooding in these proceedings her ability to pursue her claim in other forums has been effectively extinguished.
Applications under the CDDA Scheme are discretionary, they are assessed on their individual merits, and a finding that a mistake has been made by an official does not automatically mean compensation is payable. The Tribunal has no jurisdiction in respect of perceived defective administrative matters of the Department of Human Services and has no jurisdiction over the administration of the CDDA scheme.
Whilst the Tribunal has no way of assessing if Ms McDonald-Wooding claim might be successful if she lodged a request, it nevertheless encourages her to lodge an application as it would appear there may have been administrative errors and inappropriate advice provided to Ms McDonald-Wooding in the course of attempting to lodge her CCS claim.
CONCLUSION
Having carefully considered all the evidence before the Tribunal, finds that Ms McDonald-Wooding was not entitled to CCS payment for her son from a day earlier than 2 May 2022 as she had not lodged an effective claim.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO Member

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Associate
Dated: 8 September 2023

Date of hearing: 1 September 2023

Advocate for the Applicant: Mr Tim de Uray

Solicitors for the Applicant: Department of Human Services

Respondent: Self

[2023] AATA 2860

8 September 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Natural Justice

Remedies

Date of hearing:	1 September 2023
Advocate for the Applicant:	Mr Tim de Uray
Solicitors for the Applicant:	Department of Human Services
Respondent:	Self