Mohammad Hasan and Secretary, Department of Social Services

[2015] AATA 194

[2015] AATA 194  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/5018
Re	Mohammad Hasan
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	31 March 2015
Place	Sydney

The Tribunal affirms the decision under review.

....................................................

Senior Member J F Toohey

CATCHWORDS – social security – child care benefit – claim for payment to wife for care of children – FTB child – regular care child – no entitlement to payment – decision under review affirmed

Legislation

A New Tax System (Family Assistance) Act 1999 ss 3(1), 22, 41, 45(1)(c)

REASONS FOR DECISION

Senior Member J F Toohey

Background

1. On 19 June 2014, Mr Mohammad Hasan lodged a claim with Centrelink for child care benefit in respect of the care of his sons aged three years and seven months.  The claim form was signed by his wife, Aklima Akter but Centrelink treated it as a claim by him because lodged with it were two Centrelink Receipt for Registered Child Care forms addressed to him and signed by Ms Akter as “carer”. 

2. Each Receipt for Registered Child Care form stated that it was for “payment received from” Mr Hasan for care provided by Ms Akter in respect of each of their children from Monday to Sunday for four weeks from 19 May 2014 to 16 June 2014.  The “fee” for each week was stated to be $210. 

3. Both receipts were signed by Ms Akter as “carer”.  She indicated on each the details of her “Carer Reference Number”.

4. On 11 July 2014, Centrelink affirmed a decision that Mr Hasan did not qualify for the payment.  On 17 September 2014, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision. 

5. Mr Hasan seeks review of the SSAT’s decision.  For the following reasons, I have come to the same conclusion, that Mr Hasan is not eligible for the child care benefit claimed.

   Was Mr Hasan eligible for child care benefit for the period claimed?

6. Ms Akter gave evidence before the Tribunal that Mr Hasan did not pay her the amounts claimed.  Mr Hasan does not suggest that he did pay her.  Leaving that aside, he was not eligible for child care benefit in any event for the following reasons.

7. The legislation concerning child care benefit is in the A New Tax System (Family Assistance) Act 1999 (the Act). It is not necessary to set it out in any detail here.

8. A person may be eligible for child care benefit in respect of care provided by an approved child care service or a registered carer: s 41.  A person is not eligible for child care benefit in respect of a child who is the FTB child (that is, the family tax benefit child) or the regular care child of the registered carer or the partner of the carer: s 45(1)(c). 

9. A child is an FTB child of a person who cares for, and has legal responsibility for, the child: s 22.  The meaning of regular care child is set out in s 3(1) of the Act.  It is indisputable that each child was the FTB child and the regular care child of Mr Hasan and of Ms Akter during the period for which the benefit is claimed.

10. It is not in dispute that Mr Hasan and Ms Akter married in 2009.  They live together with their two children.  There can be no argument that they are each other’s partner for the purposes of the Act.  It follows that Mr Hasan is precluded by s 45(1)(c) from the benefit claimed.

    Conclusion

11. It seems, although there is no evidence of this before the Tribunal, that Ms Akter may be a registered carer.  However, whether or not she is a registered carer, each of the children in respect of whom the benefit is claimed is an FTB child and a regular care child of both her and Mr Hasan.  It follows that Mr Hasan was not eligible for child care benefit in respect of any care provided by Ms Akter

12. I affirm the decision under review. 

13.       I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. 

....................................

Associate

Dated 31 March 2015

Date(s) of hearing		17 March 2015
Representatives for the Applicant		Self-represented
Representatives for the Respondent	Dr Stephen Thompson, Solicitor