Tanaka and Secretary, Department of Social Services (Social security)

[2025] ARTA 758

Tanaka and Secretary, Department of Social Services (Social security) [2025] ARTA 758 (8 April 2025)

Applicant:  Ms Tanaka

Respondent:  Secretary, Department of Social Services 

Tribunal Number:   2024/M192585 

Tribunal:  General Member N Foster

Place:Brisbane

Date:8 April 2025

Decision:The Tribunal sets aside the decision under review and, in substitution, decides that Ms Tanaka does not have a debt of child care subsidy for the period 15 August 2021 to 10 October 2021.

CATCHWORDS

SOCIAL SECURITY – Child Care Subsidy – no attendance at child care during COVID lockdown – advised by provider that non-attendance would be regarded as allowable but absences not relevantly coded – enrolment later cancelled by applicant mother – provider’s change of management – circumstances covered by rules – 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 omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

1. This review is about whether Ms Tanaka has a recoverable debt of child care subsidy.

2. During the 2021–22 year Ms Tanaka received child care subsidy by way of fee reduction for her two children.  Between 5 August 2021 and 21 October 2021 Melbourne was subject to a lockdown due to the COVID-19 pandemic.  During this period Ms Tanaka’s children stayed at home and did not attend child care.

3. On 3 May 2023 Services Australia (Centrelink) raised a child care subsidy debt against Ms Tanaka in the amount of $4,746.04 for the period 15 August 2021 to 10 October 2021.  This debt was raised on the basis that Ms Tanaka had been paid child care subsidy for dates that her children had not attended child care.

4. Ms Tanaka requested a review and on 4 December 2024 an authorised review officer affirmed Centrelink’s decision.  In doing so, the authorised review officer found that Ms Tanaka’s child care centre had not coded her children’s absences in 2021 in a way that would allow her to be paid child care subsidy by Centrelink.  The review officer noted that if the child care centre amended its coding, Ms Tanaka’s entitlement to child care subsidy could be reassessed and that it was likely that her debt would be removed.

5. Ms Tanaka applied to the Tribunal on 9 December 2024.  The application was heard on 4 April 2025, with Ms Tanaka appearing by telephone. 

Is there a debt to the Commonwealth?

1. Ms Tanaka told the Tribunal that her children last attended child care on 11 August 2021 then stopped going because of the lockdown in Melbourne.  She later cancelled the children’s enrolment several months into the lockdown.  Although her child care centre advised her at the time that her children’s non-attendance would be regarded as an allowable absence due to the lockdown, Centrelink raised a child care subsidy debt against her two years later. 

2. Ms Tanaka told the Tribunal that she does not understand why she has a debt of child care subsidy when she satisfies the eligibility requirements set out in the authorised review officer’s decision letter.  She said that she has contacted the child care centre but the management team has changed and she has been told that her records cannot be altered now.  Ms Tanaka expressed frustration with her dealings with Centrelink and said that it had been very stressful and time-consuming trying to get her debt decision changed.

3. Under Part 4A of the A New Tax System (Family Assistance) Act 1999 (the FA Act), a person with care of a child who is attending a child care service may be eligible for child care subsidy for a session of care provided by the service. Where a person is paid more child care subsidy than they were entitled to receive, the overpayment will be a debt due to the Commonwealth under section 71C of the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).

4. Under subsection 10(1) of the FA Act, a session of care is provided to a child if the child is enrolled with an approved child care service and attends a session of care, or if a session of care is taken to be provided, such as in the case of an allowable absence. In relation to the latter, subsection 10(2) of the FA Act deems a session of care to have been provided on a day if a child was enrolled for care and if conditions prescribed by the Minister’s rules in relation to a particular event or circumstance are met.

5. As at August 2021, section 5AAB of the Child Care Subsidy Minister’s Rules 2017 (the Rules) stated that the COVID-19 pandemic was a particular event or circumstance, and that a child care centre being in a COVID-19 hotspot was a condition, for the purpose of the FA Act. Under section 5B of the Rules, provisions in section 10 of the FA Act that precluded a person from being eligible for child care subsidy after the date of their child’s last day of attendance prior to ceasing enrolment at a child care centre did not apply if the child’s absence was for a specified reason. Relevantly, section 6 of the Rules stated that one such reason was where a child could not attend care as a direct result of a period of local emergency.

6. The Tribunal observes that these provisions in the Rules allowed a person to remain eligible for child care subsidy if their child was enrolled at a child care centre but could not attend as a result of a COVID-19 lockdown in their local area.  The authorised review officer acknowledged as much, however decided that Ms Tanaka was not eligible for child care subsidy because her child care centre had not updated its computerised records in a way that would prompt Centrelink’s computer system to determine that she was eligible.  In determining Ms Tanaka’s application, the Tribunal must consider whether she was eligible for child care subsidy under the law.  From the Tribunal’s perspective, it does not matter what has – or has not – been input into a computer. 

7. In determining whether Ms Tanaka was eligible for child care subsidy during the period in question, the Tribunal notes that her children were enrolled in a child care centre at [a suburb] of Melbourne.  It is a matter of public record that Melbourne was subject to a series of lockdowns during the COVID-19 pandemic, including when Ms Tanaka’s children did not attend child care between August and October 2021.  The Tribunal is satisfied that this lockdown was a period of local emergency and that Ms Tanaka’s children did not attend child care because of a circumstance and reason covered by the Rules.  In accordance with those Rules, the Tribunal finds that sessions of care are deemed to have been provided for Ms Tanaka’s children on the days of each absence.

8. Taking these matters into account, the Tribunal concludes that Ms Tanaka was eligible for child care subsidy for the sessions of care for which she has been paid for the period 15 August 2021 to 10 October 2021. It follows that Ms Tanaka has not been overpaid child care subsidy for that period and that she does not have a debt to the Commonwealth under section 71C of the Administration Act.
   

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Tanaka does not have a debt of child care subsidy for the period 15 August 2021 to 10 October 2021.

Date of hearing: Friday, 4 April 2025