Federal Register of Legislation - Australian Government

Primary content

Determinations/Other as amended, taking into account amendments up to Child Care Benefit (Children in respect of whom no-one is eligible) Amendment Determination 2017
Administered by: Education and Training
Registered 19 May 2017
Start Date 13 Mar 2017
Date of repeal 02 Jul 2018
Repealed by Child Care (Family Assistance) Revocation Determination (No. 1) 2018

Commonwealth Coat of Arms

Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015

 

 

made under subsection 49(3) of the A New Tax System (Family Assistance) Act 1999.

Compilation No. 3     

Compilation date:                              13 March 2017

Includes amendments up to:           Child Care Benefit (Children in respect of whom no-one is eligible) Amendment Determination 2017                                         

 

 

 

 

 

 

 

 

Prepared by the Department of Education and Training, Canberra

About this compilation

 

This compilation

This is a compilation of the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015 that shows the text of the law as amended and in force on 13 March 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 


1              Name of Determination

                This Determination is the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015.

2              Commencement

                This Determination commences on 12 October 2015.

3              Revocation

                The A New Tax System (Family Assistance) (Child Care Benefit – Children in respect of whom no-one is eligible) Determination 2006 is revoked.

4              Definitions

In this Determination:

eligible disability child means:

(a)    a child who has been diagnosed by a qualified medical practitioner as suffering from one or more of the conditions listed in Schedule 1; or

(b)   a child who has been diagnosed by a registered psychologist as suffering from one or more of the conditions listed in Schedule 2,

where:

(c)    documentary evidence of the diagnosis has been provided to the approved family day care service providing care to the child in accordance with the timeframes stated in section 10 of this Determination; and

(d)   the diagnosis was obtained within a period of 24 months prior to the provision of the documentary evidence to the service.

Note: Documentary evidence could include a letter or certificate from the medical practitioner or registered psychologist containing the child’s name and date of birth, the name of the diagnosed condition and the date of diagnosis.

eligible ISP child means a child in respect of whom an approved family day care service is receiving funding, under a funding agreement entered into under the auspices of the Commonwealth Inclusion Support Programme, of IDF Family Day Care Top Up, as referred to in the Inclusion Support Programme Guidelines 2016-2017 to 2018-2019 but only where the funding is made in respect of a child who is undergoing assessment for disability, including where the assessment is ongoing or continuous, as described in those Guidelines.

engaged in activities means:

(a)    the individual is engaged in an activity on the care day that is part of a formal timetable of activities provided by the RTO, and where participation in that activity can only reasonably occur at a set time on the care day; and

(b)   without limitation, engagement in activities could involve attending a lecture (in person, or online) or undertaking an exam, which is only scheduled at a set time on the day during which the session of care occurs,

however does not include engagement in activities where the activities are outside of the individual’s formal timetable, such as where the individual is engaged in homework, group activity, viewing a pre-recorded lecture or assessment work, or where the activity is engaged in on a day that is not the day during which the session of care occurs and during a time that would not usually overlap or conflict with the session of care.

FDC carer means an individual who is employed, contracted or otherwise engaged by an approved family day care service to provide care to a child on behalf of the service.

Foster care child means a child who is under the care of an individual who is a registered and active foster carer of the child as defined under section 5B of the Social Security Act 1991.

Note: registered and active foster carer is defined under section 5B of the Social Security Act 1991 as a person who meets the requirements of the law of the State or Territory in which the person resides in order to be registered or approved to provide foster care in that State or Territory, and the person is actively involved in providing foster care in that State or Territory.

IHC carer means an individual who is employed, contracted or otherwise engaged by an approved in-home care service to provide care to a child on behalf of the service.

Inclusion Support Programme Guidelines 2016-2017 to 2018-2019 means the guidelines of that name made for the Inclusion Support Programme administered by the Department of Education and Training, as published on 11 February 2016.

remote area child means a child who is an FTB child or regular child of an individual and:

(a)    the child resides in an area designated as ‘remote Australia’ or ‘very remote Australia’ as determined in accordance with the Australian Bureau of Statistics’ Australian Statistical Geography Standard (ASGC) Volume 5 – Remoteness Structure, July 2011 (cat. no. 1270.0.55.005); and

(b)   documentary evidence of the child’s residence has been provided to the approved family day care service providing care to the child in accordance with the timeframes stated in section 10 of this Determination.

Note: Documentary evidence of a child’s residence could include a copy of the individual’s (in relation to whom the child is an FTB child or a regular care child) current driver’s licence, or a recent utility bill sent to the address where the individual and child reside, or a statutory declaration.

RTO (or ‘Registered Training Organisation’) has the same meaning as in the National Vocational Education and Training Regulator Act 2011.

5              Children in respect of whom no-one is eligible

(1)     For subsection 49(3) of the Family Assistance Act, it is determined that children included in the classes of children specified in sections 6, 7, 8 or 9 are children in respect of whom no-one is eligible for child care benefit under Division 4 of Part 3 of the Family Assistance Act.

(2)     For the avoidance of doubt, the determination in subsection (1) applies in respect of the session of care specified in sections 6, 7, 8 or 9 (as the case may be).

6              Session of care provided by FDC carer to own child or partner’s child or siblings

A child is included in the class of children specified in this section in respect of a session of care provided to the child if:

(a)     the session of care is provided by an FDC carer; and

(b)     the child is, one or more of the following:

(i)      an FTB child; or

(ii)     a regular care child; or

(iii)    a foster care child; or

(iv)    a biological or adopted child; or

(v)     a brother, sister, half-brother, half-sister, step-brother or step-sister; or

(vi)    a child for whom there is a legal responsibility towards, as referred to in paragraphs 22(5)(a) and (b) of the A New Tax System (Family Assistance) Act 1999, on the part

of the FDC carer or the partner of the FDC carer.

7              Session of care provided by IHC carer to own child or partner’s child or siblings

A child is included in the class of children specified in this section in respect of a session of care provided to the child if:

(a)     the session of care is provided by an IHC carer; and

(b)     the child is, one or more of the following:

(i)      an FTB child; or

(ii)     a regular care child; or

(iii)    a foster care child; or

(iv)    a biological or adopted child; or

(v)     a brother, sister, half-brother, half-sister, step-brother or step-sister; or

(vi)    a child for whom there is a legal responsibility towards, as referred to in paragraphs 22(5)(a) and (b) of the A New Tax System (Family Assistance) Act 1999, on the part

of the IHC carer or the partner of the IHC carer.

8              Session of care provided by an approved family day care service to the child of an FDC carer or the FDC carer’s partner

(1)     Subject to subsection (2), a child is included in the class of children specified in this section in respect of a session of care provided by an approved family day care service to the child if:

(a)     the child is:

(i)      an FTB child; or

(ii)     a regular care child,

of an FDC carer or the partner of an FDC carer; and

 (b)    the session of care is provided by the service to the child on a day (the care day) on which the FDC carer provides any session of care to a child on behalf an approved family day care service.

(2)     A child is not included in the class of children specified in this section in respect of a session of care provided to the child if:

(a)     the child is an eligible disability child or an eligible ISP child; or

(b)     the child is a remote area child; or

(c)     the FDC carer:

(i)      is required to work for at least 2 hours on the care day in paid work which is not for an approved family day care service; and

(ii)     documentary evidence has been provided to the FDC service that the FDC carer is usually required to work at the time the session of care is provided in accordance with the timeframes stated in section 10 of this Determination; or

(d)     the FDC carer:

(i)      is enrolled in a programme or course of education or training towards a recognised qualification (at Certificate III level or above) provided by an RTO; and

(ii)     engaged in activities for the purposes of the programme or course on the care day; and

(iii)    documentary evidence has been provided to the FDC service that the FDC carer usually studies at the time the session of care is provided in accordance with the timeframes stated in section 10 of this Determination.

(3)     In this section:

          Documentary evidence means evidence in written form which contains sufficient information to support that an exemption exists, as below:

(a)     Where paragraph (2)(c) applies, an employment contract or a payslip, showing usual hours of work—but where the contract or payslip does not show usual hours of work, a letter signed by the relevant employer is required stating usual hours of work; or

(b)     Where paragraph (2)(d) applies, a copy of an enrolment form detailing the times that the individual is usually required to study—but where the form does not provide such details, it must be supplemented with additional documentary evidence, such as an official course timetable.

9              Session of care provided to a child who is 14 years of age or older or who attends secondary school

 (1)    Subject to subsection (2), a child is included in the class of children specified in this section in respect of a session of care provided to the child if:

(a)     the session of care is provided by an approved family day care service; and

(b)     at least one of the following apply:

(i)    the child is 14 years of age or older; or

(ii)   the child is attending secondary school.

 (2)    A child is not included in the class of children specified in this section in respect of a session of care provided to the child if the child is 14 years of age or older or is attending secondary school, but has not yet turned 18, and the following circumstances apply:

(a)     the child needs to be cared for by the approved family day care service because:

(i)      the child cannot reasonably be left alone in the circumstances; and

(ii)     no individual over the age of 18 can provide suitable care to the child in the circumstances; and

(iii)    documentary evidence has been provided to the service of the matters in subparagraphs (a)(i) and (ii) by the individual, who is otherwise eligible for child care benefit for the session of care, in accordance with the timeframes stated in section 10 of this Determination; and

(iv)    an exemption listed in subsection (3) applies.

(3)     The exemptions referred to in subparagraph (2)(a)(iv) are that:

(a)     the child is an eligible disability child or an eligible ISP child; or

(b)     the child resides in an area which is:

(i)      designated as ‘remote Australia’ or ‘very remote Australia’ as described in the Australian Statistical Geography Standard (ASGC) Volume 5 – Remoteness Structure, July 2011 (cat. no. 1270.0.55.005, published by the Australian Bureau of Statistics); and

(ii)     documentary evidence has been provided to the service of the child’s residential address in accordance with the timeframes stated in section 10 of this Determination; or

(c)     the child has not yet turned 16 years of age, and each individual, for whom the child is an FTB child or a regular care child, and who would otherwise care for the child on the day on which the session of care is provided:

(i)      is required to work for at least 5 hours on the day on which the session of care is provided in paid work which is not for an approved family day care service; and

(ii)     documentary evidence has been provided to the service setting out the requirement for the individual to usually work at the time the session of care is provided in accordance with the timeframes stated in section 10 of this Determination.

(4)     To avoid doubt, when a service is eligible in relation to a child in accordance with section 47 of the Family Assistance Act, a requirement to provide the documentary evidence to the service in this section is taken to be a requirement for the service to hold the relevant documentary evidence (whether obtained or prepared by the service or provided by another person who is able to provide reliable evidence of the relevant matter), within the timeframes stated in section 10 of this Determination.

(5)     In this section:

Documentary evidence means evidence in written form which contains sufficient information to support that each matter in paragraph (2)(a) is met, as below:

(a)          for subparagraphs (2)(a)(i), (ii) and (iii)—a statutory declaration containing a statement from the individual of the reasons that the child could not reasonably have been left alone in the circumstances and why there was no individual over the age of 18 who could have provided suitable care to the child in those circumstances;

(b)          where paragraph (3)(a) applies—the additional requirements for documentary evidence are the same as those that apply in relation to an eligible disability child or an eligible ISP child for the purposes of paragraph 8(2)(a);

(c)          where paragraph (3)(b) applies—a copy of an individual’s (in relation to whom the child is an FTB child or a regular care child and who resides with the child on the day on which the relevant session of care is provided) current driver’s licence, or a recent utility bill sent to the address where the individual and child reside, or a statutory declaration stating the child’s residential address;

(d)          where paragraph (3)(c) applies—an employment contract or a payslip, showing usual hours of work—but where the contract or payslip does not show usual hours of work, a letter signed by the relevant employer is required stating usual hours of work.

10            Timeframes in which documentary evidence must be provided

(1)     In this Determination, where a requirement exists to provide documentary evidence to a service, the timeframes in which that documentary evidence must be provided are:

(a)     where paragraph 219N(5)(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 applies to the obligation to provide an attendance report for the child and the circumstance exists in the week referred to in that provision—within 7 days after the day on which the enrolment was confirmed; or

(b)     where paragraph 219N(5)(b) of the A New Tax System (Family Assistance) (Administration) Act 1999 applies to the obligation to provide an attendance report for the child and the circumstance exists in the week referred to in that provision—no later than the end of the second week immediately following that week.

(2)     Documentary evidence only needs to be provided once in relation to each matter to be evidenced.

(3)     To avoid doubt, when a service is eligible in accordance with section 47 of the Family Assistance Act, the timeframes in subsection (1) apply, but are to be taken as timeframes by when the service must hold the relevant documentary evidence.


 

Schedule 1

 

(a)           Moderate to severe multiple disability or moderate to severe physical disability (including neurological disability) where the child is, or is likely to be, dependent for mobility indoors and outdoors from 3 years of age onwards.

(b)          Severe multiple or physical disability (including uncontrolled seizures), requiring constant care and attention where the child is less than 6 months of age.

(c)           Moderate, severe or profound intellectual disability where IQ is less than 55. This includes a child with a known syndrome.

(d)          Autism Spectrum Disorder when diagnosed by a psychiatrist or developmental paediatrician experienced in the assessment of Pervasive Developmental Disorders and using the fifth edition of the Diagnositic and Statistical Manual of Mental Disorders (DSM-5).

(e)           Autistic Disorder or Asperger's Disorder (not including Pervasive Developmental Disorder not otherwise specified) when diagnosed by a psychiatrist or developmental paediatrician experienced in the assessment of Pervasive Development Disorders and using the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

(f)           Childhood Disintegrative Disorder diagnosed by a psychiatrist using DSM-IV.

(g)           Major depression of childhood diagnosed by a psychiatrist using DSM-IV or DSM-5.

(h)          Childhood schizophrenia diagnosed by a psychiatrist using DSM-IV or DSM-5.

(i)            Bilateral blindness where:

(i)            visual acuity is less than or equal to 6/60 with corrected vision, or

(ii)          visual fields are reduced to a measured arc of less than 10 degrees.

(j)            A 45 decibels or more hearing loss in the better ear, based on a 4 frequency pure tone average (using 500, 1,000, 2,000 and 4,000Hz).

(k)          Deaf-blindness diagnosed by a specialist multidisciplinary team, including a professional audiological and ophthalmological evaluation.

(l)            Epilepsy (uncontrolled while on medication).

(m)        Cystic Fibrosis.

(n)          Down syndrome.

(o)          Fragile X syndrome.

(p)          Diabetes Mellitus Type 1.

(q)          Phenylketonuria (PKU).

(r)            Other inborn errors of metabolism (not specified elsewhere) that are treated by medically prescribed diet to prevent neurological disability and/or severe organ damage.

Example: Organic acidaemias, urea cycle defects, galactosaemia and some fatty acid or oxidation defects.

(s)           Moderate to severe Osteogenisis Imperfecta with 2 or more fractures per year and/or significant pain that significantly limits activities of daily living.

(t)            Chromosomal or syndromic conditions (not specified elsewhere) where there is moderate or severe intellectual disability and/or multiple, major and permanent physical abnormalities as diagnosed by a paediatrician, paediatric sub-specialist or clinical geneticist.

Example: Children with a moderate or severe intellectual disability and/or multiple, major and permanent physical abnormalities who have been diagnosed with Cri du chat syndrome, Rett syndrome, Angelman syndrome, Prader-Willi syndrome, Edwards syndrome (Trisomy 18), Williams syndrome, Patau syndrome (Trisomy 13), Coffin-Lowry syndrome, Congenital rubella syndrome, Cornelia de Lange syndrome, Kabuki Make-up syndrome, Larsen syndrome, Opitz G syndrome, Pallister-Killian syndrome, Seckel syndrome, Smith-Magenis syndrome, CHARGE association.

Note: This category may apply to children diagnosed with other non-listed chromosomal or syndromic conditions who have a moderate or severe level of intellectual disability and/or multiple, major and permanent physical abnormalities.

(u)          Neurometabolic degenerative conditions where there is moderate or severe intellectual and/or moderate or severe physical disability as diagnosed by a paediatrician, paediatric sub-specialist or clinical geneticist:

(i)            Lysosomal storage disorders.

Example: Children with a moderate or severe intellectual and/or physical disability who have been diagnosed with metachromatic Leukodystrophy, Tay Sachs disease, Krabbe disease, Pompe's disease, Mucopolysaccharidoses (Hurler syndrome (MPS 1), Hunter syndrome (MPS 2), San Filipo syndrome (MPS 3), Morquio syndrome (MPS IVA), Maroteaux-Lamy syndrome (MPS VI)).

(v)          Neurometabolic conditions.

Example: Children with a moderate or severe intellectual and/or physical disability who have been diagnosed with Lesch Nyhan syndrome, Menkes disease, Zellweger syndrome and related peroxisomal disorders, some mitochondrial respiratory chain disorders.

Note: This category may apply to children diagnosed with other non-listed neurometabolic degenerative conditions who have a moderate or severe level of intellectual and/or physical disability.

(w)         Neurodegenerative disorders where there is moderate or severe intellectual and/or moderate or severe physical disability as diagnosed by a paediatrician, paediatric sub-specialist or clinical geneticist.

Example: Children with a moderate or severe intellectual and/or physical disability who have been diagnosed with Ataxia Telangiectasia, unclassified Leukodystrophies.

Note: This category may apply to children diagnosed with other non-listed neurodegenerative conditions who have a moderate or severe level of intellectual and/or physical disability.

(x)          The following dermatological conditions:

(i)            Epidermolysis Bullosa Dystrophica;

(ii)          Hypohidrotic ectodermal dysplasia (synonym: anhidrotic ectodermal dysplasia);

(iii)        Hay Wells syndrome (synonym: ankylobepharon, ectodermal dysplasia and clefting (AEC) syndrome);

(iv)        Lamellar ichthyosis;

(v)          Harlequin ichthyosis;

(vi)        Sjorgren Larsson syndrome;

(vii)      Netherton syndrome;

(viii)    Severe congenital ichthyosiform erythroderma;

(ix)        Generalised bullous ichthyosis (synonym: bullous ichthyosiform erythroderma; epidermolytic hyperkeratosis).

(y)          Any of the following neuromuscular conditions:

(i)            Duchenne (or Becker) muscular dystrophy;

(ii)          Autosomal recessive muscular dystrophy;

(iii)        Spinal muscular atrophy conditions, for example Werdnig-Hoffman;

(iv)        Friedrich's Ataxia.


 

Schedule 2

 

(a)           Autism Spectrum Disorder when diagnosed by a registered psychologist experienced in the assessment of Pervasive Developmental Disorders and using the fifth edition of the Diagnositic and Statistical Manual of Mental Disorders (DSM-5).

(b)          Autistic Disorder or Asperger's Disorder (not including Pervasive Developmental Disorder not otherwise specified) when diagnosed by a registered psychologist experienced in the assessment of Pervasive Development Disorders and using the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).

(c)           Moderate, severe or profound intellectual disability where IQ is less than 55. This includes a child with a known syndrome.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history. 

Endnote 2—Abbreviation key

 

o = order(s)

ad = added or inserted

Ord = Ordinance

am = amended

orig = original

amdt = amendment

par = paragraph(s)/subparagraph(s)

c = clause(s)

    /sub‑subparagraph(s)

C[x] = Compilation No. x

pres = present

Ch = Chapter(s)

prev = previous

def = definition(s)

(prev…) = previously

Dict = Dictionary

Pt = Part(s)

disallowed = disallowed by Parliament

r = regulation(s)/rule(s)

Div = Division(s)

 

exp = expires/expired or ceases/ceased to have

reloc = relocated

    effect

renum = renumbered

F = Federal Register of Legislation

rep = repealed

gaz = gazette

rs = repealed and substituted

LA = Legislation Act 2003

s = section(s)/subsection(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

(md) = misdescribed amendment can be given

Sdiv = Subdivision(s)

    effect

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

    cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

 

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Name

Registration

Commencement

Application, saving and transitional provisions

Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015

7 September 2015
(see F2015L01404)

12 October 2015

-

Child Care (Child Swapping Integrity) Measure – Inclusion Support Programme) Amendment Determination 2016

2 May 2016
(see F2016L00621)

1 July 2016

-

Child Care Benefit (Children in respect of whom no-one is eligible) Amendment Determination 2016

13 September 2016
(see F2016L01425)

10 October 2016

-

Child Care Benefit (Children in respect of whom no-one is eligible) Amendment Determination 2017

27 February 2017
(see F2017L00166)

13 March 2017

s. 4

 

Endnote 4—Amendment history

 

Provision affected

How affected

Section 4

am. F2016L00621; am. F2016L01425; am. F2017L00166

Section 5

rs. F2017L00166

Section 6

rs. F2016L01425

Section 7

rs. F2016L01425

Section 8

am. F2016L01425

Paragraph 8(2)(a)

rs. F2016L00621

Subparagraph 8(2)(c)(ii)

am. F2017L00166

Subparagraph 8(2)(d)(iii)

am. F2017L00166

Subsection 8(3)

ad. F2017L00166

Section 9

ad. F2017L00166

Section 10

ad. F2017L00166