QKTZ and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal to the Administrative Appeals Tribunal (AAT) regarding eligibility for Family Tax Benefit (FTB). The applicant, referred to as the Grandmother, sought to claim FTB in respect of three children. The Secretary of the Department of Social Services had determined that the children were not FTB children of the Grandmother during the period of 1 January 2017 to 5 July 2017. The core of the dispute revolved around who held legal responsibility for the day-to-day care, welfare, and development of the children during this period.

The Tribunal was required to determine whether the three children met the criteria to be considered an FTB child of the Grandmother under the relevant provisions of the Act. Specifically, the Tribunal had to consider whether the children were in the Grandmother's care and whether the circumstances surrounding legal responsibility for their care aligned with the requirements of subsection 22(2) and subsection 22(5) of the Act. This involved interpreting the meaning of "care" and "legal responsibility" in the context of the Family Assistance Guide and relevant case law.

The Tribunal reasoned that the starting point was that the Mother held legal responsibility for the day-to-day care, welfare, and development of the children. For the Grandmother to be considered an FTB child of the Grandmother, the criteria in subsection 22(2) of the Act, including being in the adult's care and specific circumstances surrounding legal responsibility under subsection 22(5), had to be met. The Tribunal noted that legal responsibility is determined by who has the right to make decisions concerning the child's day-to-day care, welfare, and development, not solely by who has physical care. Applying these principles, the Tribunal affirmed the decision of the Secretary.