Explanatory Statement
Household Stimulus Payments Administrative Scheme (FaHCSIA) Determination 2009
Summary
This instrument is made under subitem 1(1) of Schedule 4 to the Household Stimulus Package Act (No.2) 2009.
The purpose of this instrument is to provide for a scheme for household stimulus payments to families.
This instrument commences on the day after it is registered on the Federal Registrar of Legislative Instruments.
Background
The legislation for the Household Stimulus Payments enables the establishment of an administrative scheme under which payments can be made to a person in particular circumstances where the statutory schemes for those payments do not produce appropriate results.
Families are ineligible for a payment in respect of a child under the statutory schemes if the child was not in their care on the announcement date of 3 February 2009 even though the child may have been in their care when the stimulus payments were made. This Determination will acknowledge the special circumstances of people who did not have care of a child on the announcement dates.
In broad terms, under this Determination, a person may be entitled to a payment for a child who entered or returned to their ongoing care between 4 February and 31 March 2009.
Explanation of the Provisions
Part 1 Preliminary
Section 1 Name of Determination
Section 1 states the name of this Determination as the Household Stimulus Payments Administrative Scheme (FaHCSIA) Determination 2009.
Section 2 Commencement
Section 2 states that the Determination commences on the day after it is registered.
Section 3 Purpose
Section 3 states that the purpose of the Determination is to provide, in the circumstances specified, for household stimulus payments to be made to families.
Section 4 Interpretation
Subsection 4(1) defines key terms used in the Determination. Some of these terms are defined more fully in the context in which they occur.
Subsection 4(2) provides that a term used in relation to payment of family tax benefit (FTB), back to school bonus or single family income bonus has the same meaning as in the Family Assistance Act.
Part 2 Household stimulus payment circumstances
Section 5 Entitlement to an HS (back to school bonus) payment
Subsection 5(1) provides that a person is entitled to an HS (back to school bonus) payment under this Determination if the person was entitled to FTB Part A for an FTB child aged 4 to 15 who entered or re-entered the person’s ongoing care during the period beginning on 4 February 2009 and ending on 31 March 2009 and one of the following conditions applies to the person.
The first condition is that the person was entitled to FTB Part A for the child at some time during the period starting on 1 November 2008 and ending on 2 February 2009 and the person was not entitled to FTB Part A for the child for 3 February 2009 because there were special circumstances that prevented the child from being in the person’s care on that day.
An example of special circumstances might be where there has been temporary loss of care of the child for a period including 3 February 2009, due to the person’s incapacity to care for the child for the period.
The second condition is where the person is not a parent of the child and has or had ongoing care of the child under a formal foster care arrangement.
The third condition is that the person is not a parent of the child (e.g. is a grandparent) and has or had ongoing care of the child due to an inability or failure of the child’s parents to provide care of the child.
The concept of ‘ongoing care’ as used in these rules is defined in subsection 4(1) as being care that continues, or is likely to continue, for at least 26 weeks.
Finally, the person must claim the HS (back to school bonus) payment in accordance with section 9 of the Determination in order to be entitled to an HS (back to school bonus) payment.
Subsection 5(2) sets out the circumstances in which a person is not entitled to an HS (back to school bonus) payment for an FTB child. There are eight such circumstances.
First a person is not entitled to an HS (back to school bonus) payment for a particular FTB child under this Determination if the person has been paid a back to school bonus for the child under the statutory scheme (ie. a payment under Division 4C of Part 3 of the Family Assistance Administration Act).
Second, a person is not entitled to an HS (back to school bonus) payment under this Determination if the person was a member of a couple on the relevant day and their partner has been paid a back to school bonus for the child under the statutory scheme (i.e. a payment under Division 4C of Part 3 of the Family Assistance Administration Act).
Third, a person is not entitled to an HS (back to school bonus) payment under this Determination if the person was a member of a couple on the relevant day and their partner was paid an HS (back to school bonus) payment for the same FTB child, and the amount was not reduced by a specified percentage due to a blended family determination under section 28 of the Family Assistance Act, or a determination for separated members of a couple for a period before separation under section 29 of that Act.
Fourth, a person is not entitled to an HS (back to school bonus) payment under this Determination if the person has been paid a training and learning bonus for the same child. Training and learning bonus is defined in subsection 4(1) and is a training and learning bonus paid under Division 4 of Part 3 of the Social Security Administration Act or a payment made under section 5 of the Household Stimulus Package (Household Stimulus Payment Administrative Scheme) (DEEWR) Determination 2009 (No. 1). Fifth, a person is not entitled if the person was a member of a couple on the relevant day and their partner has been paid a training and learning bonus for the same child.
Sixth, the claimant must also satisfy the reconciliation conditions for the 2008-09 income year on or before 29 January 2010. Under paragraph 5(2)(f), if a person is entitled to FTB Part A for a child because of a past-period claim made after 30 June 2009 but does not satisfy the reconciliation conditions, paragraph 5(2)(f) provides that the person is not entitled to an HS (back to school bonus) payment for the FTB child.
Seventh, under paragraph 5(2)(g), a person is not entitled to an HS (back to school bonus) payment under this Determination for a child, if the person is entitled to FTB Part A for the child because of a claim made after 29 January 2010.
Eighth, under paragraph 5(2)(h), where a person is being paid FTB by instalments for an FTB child and entitlement for another child arises because that child entered the person’s care, the Secretary must become aware of this change in circumstances not later than 29 January 2010 if the person is to be entitled to an HS (back to school bonus) payment under this Determination for that child.
For the purpose of these rules, the relevant day is defined in subsection 5(3) as the first day that the person is or was entitled to FTB Part A for the FTB child during the period starting on 4 February 2009 and ending on 31 March 2009.
The note at the end of section 5 clarifies for the reader that, there may be duplicate HS (back to school bonus) payments for an FTB child, made to different people. For example, if a new carer meets the conditions under the Determination for the child, the new carer would be entitled to an HS (back to school bonus) payment under this Determination for the child despite the previous carer having already been paid a back to school bonus under the statutory scheme for the same child.
Section 6 Entitlement to an HS (single income family bonus) payment
Subsection 6(1) provides that a person is entitled to an HS (single income family bonus) payment under this Determination if the person was entitled to FTB Part B for an FTB child aged under 16 who entered or re-entered the person’s ongoing care during the period beginning on 4 February 2009 and ending on 31 March 2009 and one of the following conditions applies to the person.
The first condition is that the person was entitled to FTB Part B for the child at some time during the period starting on 1 November 2008 and ending on 2 February 2009 and the person was not entitled to FTB Part B for the child for 3 February 2009 because there were special circumstances that prevented the child from being in the person’s care on that day.
An example of special circumstances might be where there has been temporary loss of care of the child for a period including 3 February 2009, due to the person’s incapacity to care for the child for the period.
The second condition is where the person is not a parent of the child and has or had ongoing care of the child under a formal foster care arrangement.
The third condition is that the person is not a parent of the child (e.g. is a grandparent) and has or had ongoing care of the child due to an inability or failure of the child’s parents to provide care of the child.
The concept of ‘ongoing care’ as used in these rules is defined in subsection 4(1) as being care that continues, or is likely to continue, for at least 26 weeks.
Finally, the person must claim the HS (single income family bonus) payment in accordance with section 9 of the Determination in order to be entitled to an HS (single income family bonus) payment.
Subsection 6(2) sets out the circumstances in which a person is not entitled to an HS (single income family bonus) payment for an FTB child. There are six such circumstances.
First, a person is not entitled to an HS (single income family bonus) payment for a particular FTB child under this Determination if the person has been paid a single income family bonus for the child or any other child under the statutory scheme (ie. a payment under Division 4C of Part 3 of the Family Assistance Administration Act). Second, a person is not entitled to an HS (single income family bonus) payment under this Determination if the person was a member of a couple on the relevant day and their partner has been paid a single income family bonus for the child under the statutory scheme (i.e. a payment under Division 4C of Part 3 of the Family Assistance Administration Act).
Third, a person is not entitled to an HS (single income family bonus) payment under this Determination if the person was a member of a couple on the relevant day and their partner was paid an HS (single income family bonus) payment for the same FTB child, and the amount was not reduced by a specified percentage due to a blended family determination under section 28 of the Family Assistance Act, or a determination for separated members of a couple for a period before separation under section 29 of that Act.
For the purpose of these rules, the relevant day is defined in subsection 6(3) as the first day that the person is or was entitled to FTB Part B for the FTB child during the period starting on 4 February 2009 and ending on 31 March 2009.
Fourth, the claimant must also satisfy the reconciliation conditions for the 2008-09 income year on or before 29 January 2010. Under paragraph 6(2)(d), if a person is entitled to FTB Part A for a child because of a past-period claim made after 30 June 2009 but does not satisfy the reconciliation conditions, paragraph 6(2)(d) provides that the person is not entitled to an HS (single income family bonus) payment for the FTB child.
Fifth, under paragraph 6(2)(e), a person is not entitled to an HS (single income family bonus) payment under this Determination for a child, if the person is entitled to FTB Part B for the child because of a claim made after 29 January 2010.
Sixth, under paragraph 6(2)(f), where a person is being paid FTB by instalments for an FTB child and entitlement for another child arises because that child entered the person’s care, the Secretary must become aware of this change in circumstances not later than 29 January 2010 if the person is to be entitled to an HS (single income family bonus) payment under this Determination for that child.
The note at the end of section 6 clarifies for the reader that, there may be duplicate HS (single income family bonus) payments for an FTB child, made to different people. For example, if a new carer meets the conditions under the Determination for the child, the new carer would be entitled to an HS (single income family bonus) payment under this Determination for the child despite the previous carer having already been paid a single income family bonus under the statutory scheme for the same child.
Part 3 Amount of household stimulus payment
Section 7 Amount of HS (back to school bonus) payment
Subsection 7(1) provides that the amount of an HS (back to school bonus) payment under this determination for a relevant child will be $950.
Subsection 7(1) is subject to subsection 7(2). Subsection 7(2) has the effect of applying subsections 97(3), (4) and (5) of the Family Assistance Act for the purposes of working out the amount of a person’s HS (back to school bonus) payment for a child under this Determination, in the same way as those subsections apply for a payment under the statutory scheme. If a person’s rate of FTB Part A in respect of a relevant child for the day that the child re-entered or entered the person’s care (as relevant) takes account of a shared care percentage, then the amount of the person’s HS (back to school bonus) payment in respect of the relevant child is that percentage of $950.
Subsection 7(3) defines a relevant child as a child who attracts an HS (back to school bonus) payment for the person.
Section 8 Amount of HS (single income family bonus) payment
Subsection 8(1) provides that the amount of an HS (single income family bonus) payment under this determination will be $900.
Subsection 8(1) is subject to subsection 8(2). Subsection 8(2) has the effect of applying subsections 102(2) to (5) of the Family Assistance Act for the purposes of working out the amount of a person’s HS (single income family bonus) payment under this Determination, in the same way as those subsections apply for a payment under the statutory scheme. If a person’s rate of FTB Part B for a child for the day that the child re-entered or entered the person’s care (as relevant) takes account of a shared care percentage, then the amount of the person’s HS (single income family bonus) payment is that percentage of $900.
Part 4 Claiming and paying a household stimulus payment
Section 9 How to claim a household stimulus payment
Section 9 sets out that a claim for a household stimulus payment under the Determination must be made to Centrelink not later than 29 January 2010 and comply with any requirements of the Secretary. The Secretary may require that the claim be made in a particular manner and form, contain certain information and attach documents as required.
Section 10 Payment of household stimulus payment
Section 10 provides that if a person is entitled to a household stimulus payment under the Determination, the Secretary must make the payment to the person or their payment nominee, if applicable. According to subsection 10(1) the payment must be made in a lump sum, on the day that the Secretary considers to be the earliest day on which it is reasonably practicable for the payment to be made and in a way the Secretary considers appropriate.
Subsection 10(2) defines payment nominee by reference to section 219TB of the Family Assistance Administration Act.
Part 5 Debt recovery
Section 11 Household stimulus payment made because of false or misleading statement
Section 11 provides that an amount of a household stimulus payment is a debt owed to the Commonwealth by a person if a reason for the person being paid the amount was that the person knowingly made a false or misleading statement or knowingly provided false information in connection with their claim.
A note makes it clear that the whole or only part of a household stimulus payment can be a debt under this provision.
Section 12 Debt arising in relation to an HS (back to school bonus) payment
Section 12 provides that an amount of an HS (back to school bonus) payment is a debt owed to the Commonwealth where the person is paid an HS (back to school bonus) payment and the determination relating to the person’s entitlement to FTB Part A is later changed such that the person would not have been entitled to an HS (back to school bonus) payment, and a reason for the determination needing to be changed is that the person knowingly made a false or misleading statement or knowingly provided false information in relation to their FTB Part A.
Subsection 12(1) applies where it is determined that the person is not entitled to FTB Part A or their entitlement is varied, for the period starting on 4 February 2009 and ending on 31 March 2009.
Subsection 12(2) applies where a person receives the HS (back to school bonus) payment because of the application of subparagraph 5(1)(b)(i) and it is determined that the person is not entitled to FTB Part A or their entitlement is varied, for the period starting on 1 November 2008 and ending on 2 February 2009.
A debt also arises where a person’s HS (back to school bonus) payment would have been reduced had the person not knowingly made a false or misleading statement or not knowingly given false information in relation to their FTB Part A. The amount of the debt owed to the Commonwealth is the amount of the reduction in their HS (back to school bonus) payment.
Section 13 Debt arising in relation to an HS (single income family bonus) payment
Section 13 provides that an amount of an HS (single income family bonus) payment is a debt owed to the Commonwealth where the person is paid an HS (single income family bonus) payment and the determination relating to the person’s entitlement to FTB Part B is later changed such that the person would not have been entitled to an HS (single income family bonus) payment, and a reason for the determination needing to be changed is that the person knowingly made a false or misleading statement or knowingly provided false information in relation to their FTB Part B.
Subsection 13(1) applies where it is determined that the person is not entitled to FTB Part B or their entitlement is varied, for the period starting on 4 February 2009 and ending on 31 March 2009.
Subsection 13(2) applies where a person receives the HS (single income family bonus) payment because of the application of subparagraph 6(1)(b)(i) and it is determined that the person is not entitled to FTB Part B or their entitlement is varied, for the period starting on 1 November 2008 and ending on 2 February 2009.
A debt also arises where a person’s HS (single income family bonus) payment would have been reduced had the person not knowingly made a false or misleading statement or not knowingly given false information in relation to their FTB Part B. The amount of the debt owed to the Commonwealth is the amount of the reduction in their HS (single income family bonus) payment.
Section 14 Person other than payee obtaining payment of cheque
Section 14 deals with the situation where a household stimulus payment is made by cheque and a person other than the payee obtains value for the cheque without the endorsement of the payee. In this situation, the amount of the cheque is a debt due by the person to the Commonwealth.
Section 15 Provisions for debt recovery
The effect of section 15 is that the provisions of the A New Tax System (Family Assistance) (Administration) Act 1999 relating to debt recovery (and non-recovery) apply to a debt of a household stimulus payment under the Determination as if it were a debt under the family assistance law.
Part 6 Miscellaneous
Section 16 Internal review of decisions
Section 16 enables a decision relating to a household stimulus payment to be reviewed by the Secretary as if it were a family assistance decision reviewable under the internal review provisions in the Family Assistance Administration Act and in accordance with those rules.
Section 17 Review by the Administrative Appeals Tribunal
Section 17 provides that a person may apply to the Administrative Appeals Tribunal for review of a decision made under this Determination if that decision has been affirmed, varied or set aside and substituted with a new decision after internal review under section 16.
Section 18 Delegation
Subsection 18(1) provides that the Secretary can delegate to an officer all or any of the powers of the Secretary under the Determination. The effect of subsection 18(2) is that the Secretary must not delegate any powers to an officer of an agency (other than the Department) unless the head of the agency has agreed to the delegation.
Section 19 Decisions to be in writing
Paragraph 19(a) requires that decisions made by officers under the Determination must be in writing. Paragraph 19(b) provides that a decision is taken to be in writing if it is made, or recorded, by operation of a computer.
Section 20 Secretary may arrange for use of computer programs for decision making
Subsection 20(1) provides that the Secretary may arrange for the use of computer programs for any purposes for which the Secretary may make decisions under the Determination. The effect of subsection 20(2) is that a decision made by the operation of a computer program as contemplated in subsection 20(1) is taken to be a decision made by the Secretary.
Consultation
Consultation was not required in the development of this Determination.
Regulatory Impact Analysis
The Determination does not require a Regulatory Impact Statement or a Business Cost Calculator Figure. The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
The measures in this legislative instrument affect individuals’ entitlements to government payments and do not impose compliance costs on businesses, and do not require or encourage business to alter their behaviour.