Radcliffe and Secretary, Department of Social Services (Social security second review)

[2024] ARTA 248

Radcliffe and Secretary, Department of Social Services (Social security second review) [2024] ARTA 248 (12 December 2024)

Applicant/s:  Radcliffe

Respondent:  Secretary, Department of Social Services

Tribunal Number:                2022/6477

Tribunal:Deputy President K Dordevic

Place:Sydney

Date:12 December 2024

Decision:The Tribunal affirms the decision under review.

..........................[SGD]..............................................

Deputy President K Dordevic

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 161(1B)-161(1C) of A New Tax System (Family Assistance) (Administration) Act 1999.

Catchwords

SOCIAL SECURITY – family tax benefit - Principal carer of the child – determination of care percentage – 35% needed for FTB to be claimed – Decision affirmed

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Social Security Act 1991 (Cth)

A New Tax System (Family Assistance) Act 1999 (Cth)

Statement of Reasons

1. This application concerns Ms Radcliffe’s eligibility for parenting payment and family tax benefit.

2. Ms Radcliffe is the birth mother of CRC (the child) born [date]. Ms Collins is listed as the other parent on the child’s birth certificate.

3. Services Australia – Centrelink (Centrelink) granted Ms Collins parenting payment and family tax benefit from [the date of the child’s birth] on the basis that she had 100% care of the child from birth.

4. On 26 October 2020 Ms Radcliffe lodged a claim for parenting payment. Her claim was rejected on the same day.

5. On 3 November 2020 Ms Radcliffe lodged a claim for family tax benefit. On 17 November 2020 the application was rejected.

6. On 24 March 2021 Ms Radcliffe lodged another claim for parenting payment. The claim was rejected on 8 April 2021.

7. On 5 October 2021 an authorised review officer decided that the original decisions to reject Ms Radcliffe’s claims for family tax benefit and parenting payment were correct.

8. Ms Radcliffe then applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal for an independent review of the decision. On 23 June 2022, the decisions were affirmed.

9. Ms Radcliffe lodged an application for review with that decision on 9 August 2022. From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal. [1]

   [1] 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.

10. The hearing took place on 4 November 2024. Ms Radcliffe participated by MS Teams video.  Centrelink was represented by counsel. The Tribunal had before it a joint tender bundle provided by Centrelink in addition to documents provided by Ms Radcliffe.

    ISSUES

11. The issue requiring determination in this matter is whether Ms Radcliffe is entitled to receive parenting payment and/or family tax benefit from the date of the child’s birth.

12. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act) and the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act).

13. Parenting payment is a payment under the social security law. To be qualified, section 500 of the Act requires that a person must, among other things, have at least one ‘PP child’. For a child to be a particular person’s PP child, among other things, the child must be less than a certain age and the person must be the principal carer of the child. 

14. The general meaning of principal carer is given in subsections 5(15) to (24) of the Act. Logically, in most situations in which parents share the care of a child, that definition would include both parents. However, subsection 5(18) imposes a limitation whereby only one person at a time can be the principal carer of a particular child.

15. Subsection 5(19) states where there would otherwise be more than one principal carer under the general definition, Centrelink must make a written determination and give a copy of the determination to each of the persons.

16. Section 22 of the Family Assistance Act requires a person receiving family tax benefit to have the care of a family tax benefit child, referred to as a ‘FTB child’.

17. Section 25 of the Family Assistance Act provides that if a person has less than 35% care of a child during a care period, the child cannot be the person’s FTB child.

    CONSIDERATION

18. In a separate Reasons for Decision (2022/10694) the Tribunal determined that Ms Radcliffe had 28% and Ms Collins had 72% care of the child from [the date of the child’s birth] to 13 April 2021. It is noted that the Federal Circuit Court of Australia ordered on 16 July 2021 that Ms Radcliffe was to have five nights’ care per fortnight (35% care).

19. On the basis of the findings as to the respective care percentages that Ms Radcliffe and Ms Collins provided the child, and noting that subsection 5(18) of the Act states that only one person at a time can be the principal carer of a particular child, the Tribunal is not persuaded that Ms Radcliffe was the principal carer of the child at any time during the period [the date of the child’s birth] to 13 April 2021.

20. Therefore, pursuant to section 500 of the Act, Ms Radcliffe did not have a PP child in her care and so was not qualified for parenting payment as at the date of her November 2020 and March 2021 claims.

21. As outlined above, in order to be qualified for family tax benefit a person must have at least 35% care of a FTB child.

22. The Tribunal has already found that Ms Radcliffe had less than 35% care of the child from her birth until at least 13 April 2021.

23. Therefore, the child was not her FTB child on the date she lodged her claim for the benefit or at any time prior. It follows that Ms Radcliffe was not qualified for the benefit in respect of the child.

24. The decision under review is correct.

    DECISION

25. The Tribunal affirms the decision under review.

Date of hearing:	4 November 2024
Solicitors for the Respondent:	Matt Gauci, Hunt and Hunt Lawyers