WVSP and Secretary, Department of Education, Skills and Employment (Social services second review)

[2021] AATA 2058

WVSP and Secretary, Department of Education, Skills and Employment (Social services second review) [2021] AATA 2058 (29 June 2021)

Division:GENERAL DIVISION

File Number:          2020/8383 & 2020/8384

Re:WVSP  

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Senior Member Rau SC

Date:29 June 2021

Place:Adelaide

The decision under review is affirmed.

..........................[Sgnd].............................
             Senior Member J Rau SC

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.

CATCHWORDS

SOCIAL SECURITY – childcare benefit – childcare subsidy – immunisation requirements – Australian Immunisation Handbook – contraindication – decision affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975

A New Tax System (Family Assistance) Act 1999

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

Family Assistance Legislation Amendment (Jobs for Families                 Child Care Package) Act 2017

SECONDARY MATERIAL

Australian Immunisation Handbook

Child Care Benefit (Vaccination Schedules) (Education) Determination 2015  

Family Assistance Guide

Family Assistance (Immunisation and Vaccination) Determination 2018

Family  Assistance (Meeting the Immunisation Requirements) Principles 2015

REASONS FOR DECISION

Senior Member Rau SC

29 June 2021

DECISION UNDER REVIEW

1. This is a review of a decision of Member Cox of the Administrative    Appeals Tribunal (Social Services & Child Support Division) (AAT1) dated       13 November 2020. This was a decision to affirm the decisions made by an Authorised Review Officer of Services Australia (the Agency):

   (a)on 25 February 2020, to affirm the decision to reject the Applicant’s lump sum claim for Child Care Benefit for the 2017/18 financial year, made on 21 December 2018 in respect of her child, Child A, (the CCB claim), on the basis that Child A did not meet the immunisation requirements; and

   (b)on 18 March 2020, to:

   (a)vary the decision to cancel the Applicant’s Child Care Subsidy in respect of Child A with effect from 31 December 2018, such that it should  instead have effect from 3 December 2018 (the CCS cancellation decision); and

   (b)to affirm the decision to reject the Applicant’s further claim made on 21 January 2019 for Child Care Subsidy in respect of Child A (the 2019 CCS claim).

   ISSUES

2. The issues to be decided in this application are whether the following three decisions were correct:

   (a)the decision to reject the CCB claim;

   (b)the CCS cancellation decision; and

   (c)the decision to reject the 2019 CCS claim.

3. Whether each decision was correct requires the Tribunal to determine if Child A met the relevant immunisation requirements.

   FACTS

   4.Child A was born on 5 May 2016.

4. It is undisputed that Child A did not receive any of the vaccinations contained in the standard vaccination schedule under the then relevant Childcare Benefit (Vaccination Schedules) (Education) Determination.

5. The Applicant submits that Child A did meet the immunisation requirements pursuant to section 6(3)(a) of A New Tax System (Family Assistance) Act 1999 (“FA Act”). The basis for this submission is that a medical practitioner certified in writing that the immunisation “would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook”.

6. The Australian Immunisation Handbook provides both general and very specific information regarding all of the relevant vaccines. This information includes information regarding “contraindications”.

7. The specific information is as follows:

CONTRAINDICATIONS
Anaphylaxis	Pregnancy	Immunocompromised
Diphtheria	YES	NO	NO
Haemophilus influenzae type b (Hib)	YES	NO	NO
Hepatitis B	YES	NO	NO
Measles	YES	YES	YES
Meningococcal disease	YES	NO	NO
Mumps	YES	YES	YES
Pertussis (whooping cough)	YES	NO	NO
Pneumococcal disease	YES	NO	NO
Poliomyelitis	YES	NO	NO
Rubella	YES	YES	YES
Tetanus	YES	NO	NO
Varicella (chickenpox)	YES	YES	YES

9.There was no evidence before the tribunal to suggest that Child A was a child to whom any of these three contraindications had application.

10.On 21 December 2018, the Applicant lodged the CCB claim.[1]

[1] Exhibit 3, T7, p 289-292.

1. The Agency obtained records from the Australian Immunisation Register which showed that, at 21 December 2018, Child A did not meet the immunisation requirements.[2]  

   [2] Ibid, T11, p 314.

2. On the same day, the Applicant also lodged a claim for Child Care Subsidy in respect of Child A (the 2018 CCS claim).[3]

   [3] Ibid, T7, p 283-286.

3. On 22 December 2018, an officer of the Agency decided to reject the CCB claim.[4]

   [4] Ibid, T11, p 379.

4. On 14 January 2019, an officer of the Agency decided to grant the 2018 CCS claim effective from 3 December 2018, and also to cancel the Applicant’s CCS effective   from 31 December 2018 on the basis that Child A no longer met the immunisation requirements.[5]

   [5] Ibid, p 315.

   15.On 21 January 2019, the Applicant lodged the 2019 CCS claim.[6]

   [6] Ibid, T7, p 293-297.

5. On the same day, the Applicant lodged an ‘Australian Immunisation Register – Immunisation medical exemption’ form annexing a letter from Dr X, general practitioner, dated 21 December 2018, and a ‘Vaccine Information Statement’  from the United States Department of Health and Human Services (the Report).[7]

   [7] Ibid, T8, p 299-305.

6. The Report states the following:

   “[…] This letter is to accompany the IM011 Medical Exemption form as it does not include provisions for me to provide the reasons for the medical exemption that I describe below.

   I have considered [Child A’s] individual medical history and obtained an extensive family history. [Child A] has an extensive family history of autoimmune disorders, and sensitivities, and [her] mother has had an adverse allergic reaction to latex. Genetic tests also indicate that [her] ability  to produce antioxidant gluthathione is impaired, as well as [her] being homozygous for the APOE gene, associated with inflammation, including association with Alzheimers and cardiovascular disease.

   In addition, [her] mother has a history of seizures. The CDC Vaccination Information Statement, required by US law to be provided to patients prior to vaccination, regarding the inappropriateness of MMRV in cases of family history of seizures is mentioned there.

   I have consulted the guidelines in the Australian Immunisation Handbook, the latest published information from the World Health Organisation, and referred to the Product Information documents for each vaccine that [Child A] is due for. In my clinical judgement based on the best available evidence, my review of [Child A’s] medical history indicates an increased risk of a serious adverse reaction, including allergy to vaccine components. [Child A] is 2.5 years and is no longer in the high-risk period for vaccine preventable diseases in Australia. The consequence of suffering an adverse reaction cannot be accurately predicted by can be quite serious and irreversible. Therefore, in reviewing the risk vs benefit for [Child A] for each individual vaccine, I have considered the risk of an adverse reaction to vaccination outweighs the benefits […]” [emphasis added]

7. Dr X is a general practitioner and was qualified to certify a medical contraindication under section 6(3)(a) of the FA Act.

8. The Respondent conceded that there was no issue with the form of the Report. The issue is one of substance and in particular whether the Report addresses itself to relevant “contraindications” in the Australian Immunisation Handbook.

9. On 20 February 2019, the Applicant requested internal review of the decision to reject the CCB claim.[8]

   [8] Ibid, T11, p. 402.

10. On 21 February 2019, an officer of the Agency decided to reject the 2019 CCS claim on the basis that Child A did not meet the immunisation requirements.[9]

    [9] Ibid, p 315.

11. On 12 August 2019, the Applicant requested internal review of the CCS cancellation decision and the decision to reject the 2019 CCS claim.[10]

    [10] Ibid, T9 p 307-308.

12. On 25 February 2020, an Authorised Review Officer affirmed the decision on 22 December 2018 to reject the CCB claim.[11]

    [11] Ibid, T3, p 28-37.

13. On 18 March 2020, an Authorised Review Officer varied the decision on 14 January 2019 to cancel the Applicant’s Child Care Subsidy in respect of Child A such that the date of effect of cancellation was 3 December 2018 rather than 31 December 2018. The Authorised Review Officer also affirmed the decision to reject the 2019 CCS claim.[12]

    [12] Ibid, p 24-27.

14. The Applicant applied for review of the Authorised Review Officer’s decision by the AAT1 and on 13 November 2020 Member Cox of the AAT1 decided to affirm the Authorised Review Officer’s decisions.[13]

    [13] Ibid, T2.

15. On 17 December 2020, the Applicant applied for further review of the AAT1’s decision by this Tribunal.[14]

    [14] Ibid, T1.

16. The above matters are not in dispute.[15]

    [15] Exhibit 2, paragraph 5.

    LEGISLATION AND CASE LAW

17. The relevant legislation is the A New Tax System (Family Assistance) Act 1999 (the FA Act), the A New Tax System (Family Assistance) (Administration) Act 1999 (the FA Admin Act), and the Family Assistance Legislation Amendment (Jobs for Families                  Child Care Package) Act 2017 (the FA Amendment (JFCCP) Act).

18. Relevant legislative instruments are the Child Care Benefit (Vaccination Schedules) (Education) Determination 2015 (2015 CCB Vaccination Determination), the Family Assistance (Meeting the Immunisation Requirements) Principles 2015 (2015 FA Immunisation Principles), and the Family Assistance (Immunisation and Vaccination) Determination 2018 (FA Immunisation Determination).

19. Relevant policy is contained within the Family Assistance Guide (the FA Guide) published by the Department of Social Services.[16]

    [16] The Guide is available electronically at <>

    Although the Tribunal is not bound to apply policy guidelines (see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), the Tribunal will do so unless there are cogent reasons in a particular case for not doing so: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645; Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416 at 417; and Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 at 86.

    Immunisation Requirements

20. The immunisation requirements for Child Care Benefit and Child Care Subsidy can be satisfied in each case through satisfying one of sections 6(2)–(6) of the FA Act. In this case it is common ground that the only relevant provision is section 6(3)(a). There is no difference in the practical application of that section to decision to reject the CCB claim, the CCS cancellation decision, and the decision to reject the 2019 CCS claim.

21. Section 6 (3)(a) provides as follows;

    (1)  “The child meets the immunisation requirements if:

    (a) a general practitioner, a paediatrician, a public health physician, an infectious diseases physician or a clinical immunologist has certified in writing that the immunisation of the child would be medically contraindicated under the specifications set out in the Australian Immunisation Handbook [emphasis added].”

22. The applicable law at the time the Applicant made the CCB claim on 21 December 2018 was therefore the FA Act, as at 23 May 2018, and the applicable section 41 states:

    Division 4 – Eligibility for child care benefit

    41 Overview of Division

    (1)   This Division deals with eligibility for child care benefit. Before a person may be determined under Division 4 of Part 3 of the Family Assistance Administration Act to be entitled to be paid child care benefit, the person must first be eligible for it.

    Eligibility of individual for child care benefit

    (2)   An individual may be eligible for child care benefit:

    a.     by fee reduction for care provided by an approved child care service (see section 43, Subdivision A); or

    b.     for a past period for care provided by an approved child care service (see section 44, Subdivision B); or

    c.     for a past period for care provided by a registered carer (see section 45, Subdivision C); or

    d.     by single payment/in substitution because of the death of another individual (see section 46, Subdivision D).

    Eligibility of an approved child care service for child care benefit

    (3)   An approved child care service may be eligible for child care benefit by fee reduction for care provided by the service to a child at risk (see section 47, Subdivision E).[17]

    [17] Exhibit 3, T4, p 165.

23. Section 44(1)(e) of the FA Act has the effect that a person qualifies for Child Care Benefit only if the child in respect of whom they are claiming Child Care Benefit meets the immunisation requirement set out in section 44(2) of the FA Act.

24. Section 44(2) of the FA Act (as at 23 May 2018) provides:

    Requirement relating to immunisation referred to in paragraph (1)(e)

    (2) For the purposes of paragraph (1)(e), the requirement relating to immunisation is that, if the child is under 20, the child must meet the immunisation requirements set out in section 6 [emphasis added].

    37.Section 85BA of the FA Act explains the qualification criteria for Child Care Subsidy.

25. Section 85BA(1)(a)(iii) of the FA Act provides that, for a person to qualify for Child Care Subsidy in respect of a child it is necessary that, at the time the session of care is provided, the child meets the immunisation requirements in Section 6 of the FA Act.

26. Therefore, in order to grant a claim for Child Care Subsidy in this case, it is necessary that section 6(3)(a) of the FA Act is satisfied.

27. A person is only entitled to be paid Child Care Subsidy if the Secretary so determines: (section 67CB of the FA Admin Act).

28. The Secretary may make a determination that a person is entitled to a Child Care Subsidy by way of fee reduction according to section 67CC(1) of the FA Admin Act, which provides:

    67CC Determination of individual’s eligibility for CCS by fee reduction

    Determination on effective claim

    (1)If an individual makes an effective claim in respect of a child for CCS by fee reduction, the Secretary must determine:

    (a)   if, when making the determination, the Secretary is satisfied that the requirements in subparagraphs 85BA(1)(a)(i) to (iv) of the Family Assistance Act are met in relation to the claim—that the individual is eligible for CCS by fee reduction for the child; and

    (b)   if not so satisfied—that the individual is not eligible for CCS by fee reduction for the child.

29. Section 67CC(2) of the FA Admin Act provides that the Secretary may also determine that a person, for whom a determination under section 67CC(1)(a) of the FA Admin Act had previously been made, does not qualify for Child Care Subsidy:

    (2)The Secretary may determine that an individual for whom a determination under paragraph (1)(a) is in effect in relation to a child is not eligible for CCS by fee reduction for the child, if any of the following apply:

    (a)the Secretary is satisfied that the individual has ceased to be eligible, and is not reasonably likely to become eligible again, for CCS by fee reduction for sessions of care provided to the child;

    (b)the Secretary has made determinations under section 67CD(8) (the individual is not entitled to be paid CCS or ACCS for sessions of care provided to the child) for at least 52 consecutive weeks (otherwise than because of section 105E(2));

    (c)the child ceased to meet the immunisation requirements in section 6 of the Family Assistance Act more than 63 days ago. [emphasis added]

30. Such a determination has effect from the day specified in the determination: (section 67CC(6) of the FA Admin Act).

31. The effect is that, where Child Care Subsidy has been previously granted but the Secretary has subsequently determined under section 67CC(2) that a person does not qualify for Child Care Subsidy in respect of sessions of care, that person’s Child Care Subsidy may be in effect ‘cancelled’ by the Secretary effective from when the person ceased to qualify for Child Care Subsidy.

32. As outlined above, it is necessary for Child A to satisfy the immunisation requirements under the FA Act. These sections apply to the decision to reject the CCB claim, the CCS cancellation decision, and the decision to reject the 2019 CCS claim.

33. It is not contended by the Applicant that sections 6(2), (4), (5), or (6) were satisfied.

34. In paragraph 11 of Exhibit 2 the Applicant succinctly summarises her case as follows:

    “I am relying on section 6 (three) (a) of the FA act for Child A to meet the immunisation requirements, subject to the Sec’s requirements under section 6(8)(a) to the extent that these are applicable and consistent with section 6(3)(a)”.

35. This is further expanded upon by the Applicant at paragraph 24 of Exhibit 2.

    “24. To simplify the complexities of the issues, I provide the following overview of the reasons I contend that [Child A] met the immunisation requirements under Section 6(3)(a) of the FA Act for the purposes of Child Care Subsidy (CSS):

    a)    I submit that [Dr X] has, in substance, certified in writing that [Child A] has risk factors which makes receiving vaccines potentially harmful, under the specifications set out in the Australian Immunisation Handbook.

    b)    The Secretary has adopted an inappropriately strict interpretation of the Australian Immunisation Handbook (Handbook) and formed a narrow policy as to what constitutes a medical contradiction, going beyond the scope of the legislation.

    c) In developing a policy for administering medical exemptions, the Secretary has exceeded his discretionary power under Section 6(8)(a) of the FA Act by imposing criteria for clinical decision making, not just administrative criteria such as a requirement to use a form; and

    d)    The Handbook is a clinical guideline that does not contain precise requirements (specifications) with respect to medical contraindications; and

    e)    The Handbook contains recommendations which remain subject to clinical judgement in each individual case; and

    f)   [Dr X] has substantially complied with the form; and

    g) [Dr X’s] certification has complied with the substance of the requirements of Section 6(3)(a) of the FA Act.

    h)    The 2017 AAT decision found that the Department’s administrative use of the restrictive medical exemption form went beyond the scope of the legislation.

    i) While the May 2018 amendment to the FA Act addressed aspects of the 2017 AAT decision, it did not overcome all the reasons for the Tribunal finding that medical professionals must use their clinical judgement when interpreting the Handbook.”

36. Section 6(8) provides as follows:

    “The following must be made in the form and manner, containing information, and be accompanied by any documents, required by the Secretary:

    (a)   a certification under paragraph (3) (a) [emphasis added] or (b), (4) (b) or (5) (b);

    (b)   an application for a determination under section (6)”

37. As has already been noted, the Respondent takes no point about the form of the material provided by the Applicant. The Respondent’s issue is with the substance of the material. In particular, the Respondent asserts that the Medical Report does not in substance certify that “immunisation of the child would be medically contraindicated under the specifications set out in the Australian immunisation Handbook”.

38. Instruction [2.1.3.40] of the FA Guide (version 1.203, as released 7 May 2018) provides:

    Medical contraindication

    For a child to meet the immunisation requirements by medical contraindication, a recognised immunisation provider must certify in writing on the approved Australian Immunisation Register (AIR) Immunisation medical exemption form (IM011) that immunising the child would be medically contraindicated under the specifications set out in the current Australian Immunisation Handbook. [emphasis added]

    Example: A child who suffers from anaphylaxis following a previous dose of the relevant vaccine. If so, a recognised immunisation provider may certify that immunisation is medically contraindicated on the approved form.

1. Instruction [2.6.2.30] of the FA Guide (version 1.208, as released 2 January 2019) provides, relevantly to the application of section 6(3) of the FA Act in respect of the CCS cancellation decision and the 2019 CCS claim:

   The following table shows the circumstances when a person (1.1.P.80) should be treated as exempt from the immunisation requirements for the purposes of CCS. Any evidence that an individual must supply is listed in the second column of the table.

   To update the Australian Immunisation Register (AIR), individuals must take evidence to a recognised immunisation provider who will update the AIR, if appropriate.

Exemption circumstance	Evidence required
Medical contraindication	A recognised immunisation provider must certify in writing on the approved Australian Immunisation Register (AIR) Immunisation medical exemption form (IM011) that immunising the child would be medically contraindicated under the specifications set out in the current Australian Immunisation Handbook [emphasis added].

1. The current Australian Immunisation Handbook as at the time of the CCB claim, the CCS cancellation decision, and the 2019 CCS claim was the electronic edition of the Australian Immunisation Handbook released on 9 July 2018.

2. Both the Applicant and the Respondent accept that this matter is to be determined by asking the question: does the medical report contain an expression of opinion that vaccination is medically contraindicated under the specifications of the then current Australian Immunisation Handbook?

   55.The Australian Immunisation Handbook relevantly provides:

   Contraindications to vaccination

   Only 2 absolute contraindications apply to all vaccines:

   ·     anaphylaxis following a previous dose of the relevant vaccine

   ·     anaphylaxis following any component of the relevant vaccine (see Table. Components of vaccines used in Australia)

   2 further contraindications apply to live vaccines (both parenteral and oral):

   ·     People who are significantly immunocompromised should not receive live vaccines. This is regardless of whether the immunocompromising condition is caused by disease or treatment. Exception: With further advice, people with HIV who are mildly immunocompromised can receive MMR (measles-mumps-rubella), varicella and zoster vaccines. See Vaccination of people who are immunocompromised, and individual disease chapters.

   ·     Pregnant women should not receive live vaccines, in general. Women should be advised not to become pregnant within 28 days of receiving a live vaccine.

   See Table. Vaccines that are contraindicated in pregnancy: live attenuated vaccines in Vaccination for women who are planning pregnancy, pregnant or breastfeeding.

   […]

   False contraindications to vaccination

   No-one should be denied the benefits of vaccination by withholding vaccines for inappropriate  reasons.

   Conditions listed in this section are not contraindications to vaccination. People with these conditions can receive all recommended vaccines:

   […]

   ·     family history of any adverse events following immunisation

   ·     history of convulsions

3. The Australian Immunisation Handbook contains various information relevant to specific vaccines. The Tribunal sought and obtained from the parties a copy of the relevant provisions for all of the relevant vaccines which are listed in the table at paragraph 8.

4. On 21 January 2019, the Applicant lodged an ‘Australian Immunisation Register – Immunisation medical exemption’ form completed by Dr X, general   practitioner, annexing the Report.

5. The Report did not certify that immunising Child A would be medically contraindicated by reference to the Australian Immunisation Handbook, as was required.

6. The ‘Australian Immunisation Register – Immunisation medical exemption’ form makes provision for a practitioner completing the form to certify that the contraindications specified in the Australian Immunisation Handbook (as quoted at [52] above) apply. However, Dr X did not do so.

7. The reasons outlined in the Report may have been relevant to Dr X’s clinical judgement not to provide Child A with immunisations. They did not, however, corresponded with contraindications set out under the specifications of the Australian Immunisation Handbook as required by section 6(3)(a) of the FA Act. This is so notwithstanding the fact that Dr X states, ‘I have consulted the guidelines in the Australian Immunisation Handbook’. The legislative requirement is not that a general practitioner (or other health practitioner mentioned in section 6(3)(a)) merely consult the Australian Immunisation Handbook among other sources, in coming to a clinical judgement as to whether immunisation would be desirable. They must certify that immunisation would be medically contraindicated under its specifications (rather than due to any other consideration).

8. Child A did not meet the immunity requirements by virtue of section 6(3)(a) of the FA Act, because the Report is not evidence that a general practitioner, a paediatrician, a public health physician, an infectious diseases physician or a clinical immunologist has certified in writing that immunisation would in her case be medically contraindicated under the specifications set out in the Australian Immunisation Handbook. That is notwithstanding Dr X’s opinion that:

   “in reviewing the risk vs benefit for [Child A] for each individual vaccine, I have considered the risk of an adverse reaction to vaccination outweighs the benefits”.[18]

   [18] Exhibit 3, T7, p 293-297.

9. The problem for the Applicant is that the substance of Dr X’s Report did not meet the requirement of section 6(3)(a) of the FA Act, and in particular the Australian Immunisation Handbook specifications.

10. At 10:39AM on 23 June 2021 the parties were advised by the Tribunal that a decision on this matter would be published the following day.

11. Subsequently, at 3:54PM the Registry received an email from the Applicant in the following terms:

    “At the hearing I raised concerns about the Secretary changing the nature of the reasons for rejecting [Child A's] medical exemption form.

    The initial reason given by the Authorised Review Officer was that her medical exemption had not been recorded on the AIR.

    However, in the hearing Mr Calaby changed those reasons to abandon the form and whether it was recorded on the AIR, and the focus became specifically about the contents and wording of [Doctor X's] letter.

    I expressed concern during the hearing that I have never been given information about how or what I could do for my daughter [Child A] to meet the immunisation requirements, and I feel this lacks distinct procedural unfairness. I also expressed concern at not being able to get additional clarification from my doctor.

    Subsequent to the hearing I have contacted my GP and received the earliest available appointment with her on Monday 21st June, and she has written a subsequent letter of clarification for me that I believe should meet the requirements of Section 6(3)(a) of the Family Assistance Act. I have only just received a copy of this letter via email today.

    I hope you can urgently consider accepting this document into evidence for the following reasons:

    ·I was not able to get a letter from my Doctor earlier than today

    ·This matter has significant financial impacts on my family

    ·This matter also has educational and wellbeing impacts on my daughter, as eligibility under the federal law affects eligibility for kindergarten/childcare under South Australian No Jab No Play laws

    ·If I am unsuccessful and I am required to appeal in the Federal Court, then my daughter will be at school before we get a decision from the Federal court (she commences school in January 2022)

    ·This matter has already impacted our family and my daughter for 2.5 years”

12. The email reproduced at paragraph 64 attached a copy of a further medical report from Dr X dated 21 June 2021 (the Further Report), received by the Tribunal at 4:08PM, which is contained in full in Annexure A.

13. The Tribunal may receive evidence after the conclusion of the hearing as it sees fit. Section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 relevantly states:

    “the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”.

14. I note that the Applicant gave no indication of any prejudice prior to being notified of the imminent publication of the decision in this matter on 23 June 2021. The Applicant was also given every opportunity to say anything in her cause at the conclusion of the hearing. From the perspective of the Applicant, late evidence has been obtained. There is no reason to believe, however, that such evidence was not reasonably obtainable prior to the hearing. The Applicant says that it was only during the hearing that she became aware that the real issue was not section 6(8)(a) of the FA Act (i.e. the form of the material) but section 6(3)(a) only (i.e. the substance).

15. Although not determinative of this matter, I consider that the Applicant would not have succeeded in an application of this type, if these proceedings were in a court rather than this Tribunal. In my view, there is a strong public interest in matters being heard and determined according to the timetable established by the Tribunal. There is a strong public interest in matters being finalised at the conclusion of a hearing.

16. Notwithstanding the strong public policy reasons for refusing the Applicant’s request, and having regard to the Further Report, I have determined to admit the additional material into evidence so as to put the Applicant beyond any doubt that her case has been fully considered.

17. I have considered the Applicant’s submissions and the Further Report. Importantly, Dr X indicates that she has used the Australian Immunisation Handbook for “clinical guidance” and that the Handbook provides for the exercise of “clinical judgement and consideration of guidance from other sources”. This summary of Dr X’s position is not materially different to that contained in her earlier Report. In my view, the Further Report does not change the evidence relevant to the determination of this matter from the position as it was at the conclusion of the hearing on 10 June 2021.

    CONCLUSION

18. In summary, Child A did not receive any immunisations and she was not otherwise exempt under section 6(3)(a) of the FA Act as would be required to meet the immunisation requirements from 3 December 2018 to 21 January 2019 and to qualify for either of Child Care Benefit or Child Care Subsidy. As a result, the Applicant did not qualify for Child Care Benefit in respect of the CCB claim, or Child Care Subsidy in respect of either of the 2018 CCS claim or the 2019 CCS claim.

    72.I therefore determine that:

    a)  the decision to reject the CCB claim was correct;

    b)  the CCS cancellation decision in relation to the 2018 CCS claim was correct;

    and

    c)  the decision to reject the 2019 CCS claim was correct.

    73.The decision under review is affirmed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for the decision herein of Senior Member Rau SC.

............................[Sgnd]......................................

Legal Administrative Assistant

Dated:   29 June 2021

Date of hearing:

10 & 28 June 2021

Applicant:

Self-Represented

Solicitor for the Respondent:

Riley Calaby

Services Australia

Annexure A

[Dr X Report]

21/06/2021

Dept of Human Services
Australian Immunisation Register

Dear Sir/Madam

Re:     [Child A]
          [Details redacted]

I refer to my medical contraindication certification for [Child A], now [age], dated 21 December 2018.

To clarify, as was noted in that certification, I considered the clinical guidance in the Australian Immunisation Handbook, which provides for the exercise of clinical judgement and consideration of guidance from other sources. As a result, I determined that vaccination of [Child A] would be contraindicated under the specifications of the Australian Immunisation Handbook.

Past Medical History

Date  Condition  
[Redated]                   [Redacted]          

Medications

None recorded.

Smoking: Never smoked

Allergies: No known allergies/adverse reactions.

Family history

[Redacted]

[Dr X signature]