Meagher and Meagher (Child support)

[2020] AATA 4407

Meagher and Meagher (Child support) [2020] AATA 4407 (4 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019360

APPLICANT:  Ms Meagher

OTHER PARTIES:  Child Support Registrar

Mr Meagher

TRIBUNAL:Member T Bubutievski

DECISION DATE:  4 August 2020

DECISION:

The decision under review is set aside and substituted with a decision that the application to extend child support after the child’s 18^th birthday was correctly accepted. Child support remains payable for the child until 18 December 2019.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the child’s eighteenth birthday – whether the child was in full-time secondary education on his eighteenth birthday – application should be accepted – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Meagher and Ms Meagher are the parents of [Child 1]. Following an application made by Ms Meagher on 12 August 2019, on 3 September 2019 the Department of Human Services – Child Support (now known as Services Australia) (the Department) decided to extend the child support assessment beyond [Child 1]’s 18^th birthday [in] September 2019 because he was still in full-time secondary education.

2. Mr Meagher lodged an objection to this decision, and on 24 June 2020 this objection was reconsidered by a Departmental objections officer, who allowed the objection and decided that the child support assessment would end on 26 September 2019, as this was the last date that [Child 1] attended studies at [High School 1].

3. On 1 July 2020 Ms Meagher made an application for review by the Social Services and Child Support Division of this tribunal. The matter was heard in Sydney on 4 August 2020. Mr Meagher and Ms Meagher both attended the hearing by telephone and gave evidence to the tribunal.

ISSUES

1. The statutory provisions relevant to this review are found in sections 151B and 151C of the Child Support (Assessment) Act 1989 (the Act). These provisions say that a person may make an application for a child support assessment to be extended past a child’s 18^th birthday in specified circumstances, and set out the circumstances in which the Child Support Registrar must accept such an application.

CONSIDERATION

1. Ms Meagher argued that [Child 1] was still in secondary education until the end of the school year on 20 December 2019. She provided the Department with a letter from the Head Learning Support Teacher, dated 8 August 2019, which says that [Child 1] will be enrolled at school until 20 December 2019.

2. Ms Meagher provided the tribunal with a letter from [Mr A], the Principal of [High School 1], which says that [Child 1] was enrolled at the school from 29 January 2014 until 18 December 2019 as a student in the Multi Categorical Class of the Support Unit. He attended classes at the school until 27 September 2019 before attending [Organisation 1] for work experience until the end of his enrolment ([Organisation 1] is a disability service).

3. Mr Meagher said that he understood that [Child 1] finished school on 26 September 2019, as that was the last day of classes for him. He provided the Department with a letter from [Ms B], the Deputy Principal, which says that [Child 1]’s last day of attendance at [High School 1] was 25 September 2019.

4. Ms Meagher told the tribunal that [Child 1] has autism. He was in the Support Unit at the school, and for the last term of Year 12 he attended a number of different disability support services to see which service he would like to attend in 2020. Ms Meagher said that this was through the School Leavers Employment Supports (SLES) Program provided through the National Disability Insurance Scheme (NDIS). The NDIS website says that this program is an early intervention program available to participants in the last year of secondary school. It is intended to support the young person’s transition from school to employment.

5. Ms Meagher said that [Child 1] did not attend classes at school for the last term of 2019, but that she was constantly talking to the head teacher and the support teachers about ideas and options for [Child 1]. Each time he tried a new service, a support teacher from [High School 1] accompanied him for a couple of days to make sure that he was comfortable in the new environment.

6. Ms Meagher said that [Child 1] had also completed a Certificate II in [Subject 1] as part of Year 12, and he may have been required to go back to school to finish work in this part of the course up until the end of the school year. He did not actually need to complete any further schoolwork during this time. Ms Meagher said that [Child 1] needed to be enrolled at school during the course of the SLES Program to be covered by insurance.

7. [Child 1] is still at [Organisation 1] this year, although his days have been reduced from three days per week to two due to a need for smaller class sizes due to COVID-19.

8. Section 151B of the Act says that a carer entitled to child support may make an application for child support to be extended after a child’s 18^th birthday. Such an application was made by Ms Meagher on 12 August 2019.

9. Section 151C of the Act says that the Child Support Registrar must either refuse or accept such an application. An application must be accepted if, among other criteria which are all satisfied in this case, “… the child is likely to be in full-time secondary education on the child’s 18th birthday …” (151C(2)(c)).

10. [Child 1] was definitely still in full-time education on his 18^th birthday [in] September 2019 as he was still attending classes at [High School 1]. The issue comes from 26 September 2019 onwards, as [Child 1] did not return to classes at school, although his enrolment continued until 18 December 2019.

11. The NDIS SLES Provider’s Handbook states: “… SLES funding may be included in a participant’s plan during the final year of school either in their first plan or plan review during the last year of school. Many participants will benefit from accessing their SLES supports during the last few months of school to start this important transition planning …”

12. The tribunal accepts the evidence of Mr Maher that [Child 1] was enrolled at [High School 1] until 18 December 2019. His enrolment did not cease when he stopped attending classes at the school, as he then moved into the SLES program for the last few months of his full‑time secondary schooling. This was supported by [High School 1] and support teachers accompanied him into the changed environment. This is akin to a Year 10 student doing work experience – they do not cease to be a student in full‑time education for the period in which they are doing so, it is simply part of their education.

13. The tribunal finds that [Child 1] was in full-time secondary education on his 18^th birthday, and the application for an extension to the child support assessment must be accepted. [Child 1] remained in full‑time secondary education until 18 December 2019, which was the last day of his school year. Child support is payable for [Child 1] until 18 December 2019.

DECISION

The decision under review is set aside and substituted with a decision that the application to extend child support after the child’s 18^th birthday was correctly accepted. Child support remains payable for the child until 18 December 2019.