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SOCIAL SECURITY (HOME CHILD CARE AND PARTNER ALLOWANCES) LEGISLATION AMENDMENT ACT 1994 No. 55, 1994 - SECT 3
Insertion of new Part
3. After Part 2.17 of the Principal Act the following Part is inserted:
"PART 2.18-HOME CHILD CARE ALLOWANCE
"Division 1-Home child care allowance child status Home child care allowance
child
"901. Subject to sections 902 to 905, a home child care allowance child is a
dependent child of a member of a couple. Note: For 'dependent child' see
subsections 5(2) to (9).
Home child care allowance child-prescribed student child not included
"902. (1) A dependent child cannot be a home child care allowance child if the
child is a prescribed student child.
"(2) For the purposes of subsection (1), a young person who is qualified to
receive payments under the Assistance for Isolated Children Scheme is not a
prescribed student child. Note: For 'prescribed student child' see
subsection 5(11).
Home child care allowance child-child over 16
"903. (1) Subject to subsection (2), a dependent child who has turned 16
cannot be a home child care allowance child.
"(2) A dependent child who has turned 16 and is undertaking secondary studies
may be a home child care allowance child until:
(a) the end of the calendar year in which the child turns 18; or
(b) the child ceases secondary studies; whichever happens first.
Home child care allowance child-residence requirements
"904. A dependent child cannot be a home child care allowance child unless:
(a) the child is an inhabitant of Australia; or
(b) the child is a dependent child of an inhabitant of Australia and is
living with that inhabitant. Note: For 'inhabitant of Australia' see
subsection 23(1).
Home child care allowance child-child absent from Australia for more than 13
weeks
"905. (1) If a dependent child:
(a) either:
(i) leaves Australia; or
(ii) is born outside Australia; and
(b) continues to be absent from Australia for more than 13 weeks; the
child cannot be a home child care allowance child at any time after
the 13 weeks while the child remains absent from Australia.
"(2) If:
(a) a dependent child is not a home child care allowance child because of
subsection (1) or a previous application of this subsection; and
(b) the child comes to Australia; and
(c) the child leaves Australia less than 13 weeks later; the child cannot
be a home child care allowance child when the child leaves Australia
as mentioned in paragraph (c).
"Division 2-Qualification for and payability of
home child care allowance
"Subdivision A-Qualification Qualification for home child care allowance
"906. A person is qualified for home child care allowance if the person:
(a) is a member of a couple; and
(b) has a home child care allowance child; and
(c) is an inhabitant of Australia; and
(d) is in Australia. Note: For 'inhabitant of Australia' see subsection
23(1).
Qualification for home child care allowance ceases after 13 week absence of
recipient from Australia
"907. (1) Subject to subsection (2), for the purposes of paragraph 906(d), a
person is taken to be in Australia if the person is temporarily absent from
Australia for a period of 13 weeks or less.
"(2) If:
(a) a person who has been absent from Australia for a period of more than
13 weeks returns to Australia; and
(b) the person leaves Australia again within 13 weeks after returning to
Australia; for the purposes of subsection (1), the person is not to be
taken to be in Australia during the subsequent period of absence.
"Subdivision B-Payability Home child care allowance not payable in some
circumstances
"908. Even though a person is qualified for home child care allowance, the
allowance may not be payable to the person because:
(a) the allowance has not commenced to be payable (see sections 909 and
930); or
(b) the person has not provided a tax file number for the person (see
section 913) or the person's partner (see section 914); or
(c) another person is receiving home child care allowance for the same
child (see subsection 912(1)); or
(d) the person's partner is receiving home child care allowance (see
subsection 912(2)); or
(e) the person's home child care allowance rate would be nil; or
(f) the person is in gaol (see Part 3.13).
Home child care allowance generally not payable before claim
"909. Subject to section 911, home child care allowance is not payable to a
person before the person's provisional commencement day (identified under
section 910).
Provisional commencement day General rule
"910. (1) Subject to subsections (2) to (5), a person's provisional
commencement day is the day on which the person claims home child care
allowance.
Initial incorrect or inappropriate claim followed by claim for home child care
allowance
"(2) If:
(a) a person makes a claim (the 'initial claim') for:
(i) another payment under this Act; or
(ii) a pension, allowance, benefit or other payment under another
Act, or under a program administered by the Commonwealth, that
is similar in character to a home child care allowance; and
(b) on the day on which the person makes the initial claim, the person is
qualified for home child care allowance; and
(c) the person subsequently makes a claim for home child care allowance;
and
(d) the Secretary is satisfied that it is reasonable for this subsection
to apply to the person; the person's provisional commencement day is
the day on which the person made the initial claim.
Early claim
"(3) If:
(a) a person lodges a claim for home child care allowance; and
(b) the person is not, on the day on which the claim is lodged, qualified
for home child care allowance; and
(c) the person becomes qualified for home child care allowance during the
period of 13 weeks that starts immediately after that day; the
person's provisional commencement day is the first day on which the
person is qualified for home child care allowance.
Backdating-claim lodged on or after 29 September 1994 and on or before 31
December 1994
"(4) If:
(a) a person lodges a claim for home child care allowance on a day (the
'claim day') in the period commencing on 29 September 1994 and ending
on 31 December 1994 (the 'claim period'); and
(b) on a day in the claim period that is before the claim day the person
is qualified for home child care allowance; the person's provisional
commencement day is the first day in the claim period on which the
person is qualified for home child care allowance.
Backdating-birth of child
"(5) If a person lodges a claim for home child care allowance within 13 weeks
of the birth of a dependent child, the person's provisional commencement day
is the day on which the dependent child is born.
Backdating-death of former recipient
"911. If:
(a) a person who is receiving home child care allowance in relation to a
child dies; and
(b) another person makes a claim for home child care allowance in relation
to the child within 13 weeks after the death; home child care
allowance may become payable to the other person before that person's
provisional commencement day but not before the day of the person's
death.
Home child care allowance not payable to more than one person for the same
child
"912. (1) If:
(a) more than one person qualifies for home child care allowance in
relation to the same child; and
(b) the Secretary has not made a declaration under subsection 938(1) in
respect of home child care allowance in relation to the child; and
(c) one of the persons is receiving home child care allowance for the
child; home child care allowance is not payable to any other person in
relation to that child.
"(2) If:
(a) both members of a couple are qualified for home child care allowance;
and
(b) the Secretary has not made a declaration under subsection 938(1) in
respect of the home child care allowance; and
(c) one of the members of the couple is receiving home child care
allowance; home child care allowance is not payable to the other
member of the couple. Note: Subsection 938(1) allows the Secretary to
make a declaration that more than one person can share home child care
allowance.
Provision of person's tax file number
"913. (1) Home child care allowance is not payable to a person if:
(a) the person is required under section 920 or 941 to give the Secretary
a written statement of the person's tax file number; and
(b) at the end of the period of 28 days after the requirement is made, the
person has neither:
(i) given the Secretary a written statement of the person's tax
file number; nor
(ii) given the Secretary a declaration by the person in a form
approved by the Secretary and satisfied either subsection (2)
or (3).
"(2) The person satisfies this subsection if:
(a) the person's declaration states that the person:
(i) has a tax file number but does not know what it is; and
(ii) has asked the Commissioner of Taxation to inform the person of
the person's tax file number; and
(b) the person has given the Secretary a document by the person that
authorises the Commissioner of Taxation to tell the Secretary:
(i) whether the person has a tax file number; and
(ii) if the person has a tax file number-the tax file number; and
(c) the Commissioner of Taxation has not told the Secretary that the
person has no tax file number.
"(3) The person satisfies this subsection if:
(a) the person's declaration states that an application by the person for
a tax file number is pending; and
(b) the person has given the Secretary a document by the person that
authorises the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the person-the tax file
number; or
(ii) if the application is refused-that the application has been
refused; or
(iii) if the application is withdrawn-that the application has been
withdrawn; and
(c) the Commissioner of Taxation has not told the Secretary that an
application by the person for a tax file number has been refused; and
(d) the application for a tax file number has not been withdrawn.
Provision of partner's tax file number
"914. (1) Subject to subsection (4), home child care allowance is not payable
to a person if:
(a) the person is required under section 921 or 942 to give the Secretary
a written statement of the tax file number of the person's partner;
and
(b) at the end of the period of 28 days after the requirement is made the
person has neither:
(i) given the Secretary a written statement of the partner's tax
file number; nor
(ii) given the Secretary a declaration by the partner in a form
approved by the Secretary and satisfied either subsection (2)
or (3).
"(2) The person satisfies this subsection if:
(a) the partner's declaration states that the partner:
(i) has a tax file number but does not know what it is; and
(ii) has asked the Commissioner of Taxation to inform the partner of
the partner's tax file number; and
(b) the person has given the Secretary a document by the partner that
authorises the Commissioner of Taxation to tell the Secretary:
(i) whether the partner has a tax file number; and
(ii) if the partner has a tax file number-the tax file number; and
(c) the Commissioner of Taxation has not told the Secretary that the
partner has no tax file number.
"(3) The person satisfies this subsection if:
(a) the partner's declaration states that an application by the partner
for a tax file number is pending; and
(b) the person has given the Secretary a document by the partner that
authorises the Commissioner of Taxation to tell the Secretary:
(i) if a tax file number is issued to the partner-the tax file
number; or
(ii) if the application is refused-that the application has been
refused; or
(iii) if the application is withdrawn-that the application has been
withdrawn; and
(c) the Commissioner of Taxation has not told the Secretary that an
application by the partner for a tax file number has been refused; and
(d) the application for a tax file number has not been withdrawn.
"(4) The Secretary may waive the requirement for a statement of the partner's
tax file number if the Secretary is satisfied that:
(a) the person does not know the partner's tax file number; and
(b) the person can obtain none of the following from the partner:
(i) the partner's tax file number;
(ii) a statement of the partner's tax file number;
(iii) a declaration by the partner under subparagraph (1)(b)(ii).
"Division 3-Claim for home child care allowance
Need for a claim
"915. (1) A person who wants to be granted home child care allowance must make
a proper claim for that payment. Note: For 'proper claim' see section 916
(form), section 917 (manner of lodgment) and section 918 (inhabitant of
Australia).
"(2) For the purposes of subsection (1), if:
(a) a claim for home child care allowance is made by or on behalf of a
person; and
(b) at the time the claim is made, the claim cannot be granted because the
person is not qualified for home child care allowance; the claim is,
subject to subsection 910(3), taken not to have been made.
Form of claim
"916. To be a proper claim, a claim must be made in writing and must be in
accordance with a form approved by the Secretary.
Lodgment of claim
"917. (1) To be a proper claim, a claim must be lodged:
(a) at an office of the Department; or
(b) at a place approved for the purpose by the Secretary; or
(c) with a person approved for the purpose by the Secretary.
"(2) A place or person approved under subsection (1) must be a place or person
in Australia.
Claimant must be an inhabitant of Australia and in Australia
"918. A claim by a person is not a proper claim unless the person is an
inhabitant of Australia and in Australia on the day on which the claim is
lodged. Note: For 'inhabitant of Australia' see subsection 23(1).
Claim may be withdrawn
"919. (1) A claimant for home child care allowance or a person on behalf of a
claimant may withdraw a claim that has not been determined.
"(2) A claim that is withdrawn is taken to have not been made.
"(3) A withdrawal may be made orally or in writing.
Secretary may require claimant to give statement of claimant's tax file number
"920. The Secretary may require a claimant for home child care allowance to
give the Secretary a written statement of the person's tax file number. Note
1: For the consequences of a failure to comply with the requirement see
section 913. Note 2: In some cases the requirement can be satisfied by giving
the Secretary a declaration by the person about the person's tax file number
and an authority by the person to the Commissioner of Taxation to give the
Secretary certain information about the person's tax file number (see
subsections 913(2) and (3)).
Secretary may require claimant to give statement of partner's tax file number
"921. If the partner of a claimant for home child care allowance is in
Australia, the Secretary may require the claimant to give the Secretary a
written statement of the tax file number of the claimant's partner. Note 1:
For the consequences of a failure to comply with the requirement see section
914. Note 2: In some cases the requirement can be satisfied by giving the
Secretary a declaration by the partner about the partner's tax file number and
an authority by the partner to the Commissioner of Taxation to give the
Secretary certain information about the partner's tax file number (see
subsections 914(2) and (3)). Note 3: The Secretary may waive the requirement
in some cases (see subsection 914(4)).
"Division 4-Determination of claim
Secretary to determine claim
"922. The Secretary must, in accordance with this Act, determine a claim for
home child care allowance.
Grant of claim
"923. The Secretary is to determine that the claim is to be granted if the
Secretary is satisfied that:
(a) the person is qualified for home child care allowance; and
(b) the allowance is payable.
Date of effect of determination
"924. (1) Subject to subsections (2) to (7), a determination under section 923
takes effect on the day on which the determination is made or on such later
day or earlier day as is specified in the determination.
Notified decision-review sought within 13 weeks
"(2) If:
(a) a decision (the 'previous decision') is made rejecting a person's
claim for home child care allowance; and
(b) a notice is given to the person advising the person of the making of
the previous decision; and
(c) the person applies to the Secretary under section 1240, within 13
weeks after the notice is given, for review of the previous decision;
and
(d) a determination granting the claim is made as a result of the
application for review; the determination takes effect on the day on
which the previous decision took effect.
Notified decision-review sought after 13 weeks
"(3) If:
(a) a decision (the 'previous decision') is made rejecting the person's
claim for home child care allowance; and
(b) a notice is given to the person advising the person of the making of
the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 13
weeks after the notice is given, for review of the previous decision;
and
(d) a determination granting the claim is made as a result of the
application for review; the determination takes effect on the day on
which the person sought the review.
Decision not notified
"(4) If:
(a) a decision (the 'previous decision') is made rejecting a person's
claim for home child care allowance; and
(b) no notice is given to the person advising the person of the making of
the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of
the previous decision; and
(d) a determination granting the claim is made as a result of the
application for review; the determination takes effect on the day on
which the previous decision took effect.
"Division 5-Rate of home child care allowance Purpose of Division
"925. The purpose of this Division is to work out the annual rate at which
home child care allowance is payable to a person.
Interpretation
"926. For the purposes of this Division, 'ordinary income' includes:
(a) a payment by way of a social security pension, social security benefit
or rehabilitation allowance other than that part of the payment that
is for rent assistance, pharmaceutical allowance or remote area
allowance; and
(b) a payment received by a trainee in full-time training under a program
included in the programs known as the Labour Force Programs, to the
extent that the payment includes one or more of the following amounts:
(i) an amount calculated by a reference to a rate of job search or
newstart allowance;
(ii) an amount known as the training component;
(iii) an amount by way of a living away from home allowance; and
(c) a payment received by the person under the scheme known as the New
Enterprise Incentive Scheme; and
(d) a payment received by the person under a scheme known as the
Aboriginal Employment Incentive Scheme; and
(e) a payment by way of a service pension. Note: For general definition of
'ordinary income' see subsection 8(1).
Ordinary income free area
"927. (1) A person's 'ordinary income free area' is the amount of ordinary
income that the person can have without a deduction being made from the
person's home child care allowance payment.
"(2) The ordinary income free area is $282.00 a year.
Maximum rate of home child care allowance
"928. The maximum rate of home child care allowance is $1,560.00 per annum.
How to calculate a person's annual rate of home child care allowance
"929. (1) To work out the person's annual rate of home child care allowance,
first, work out the person's ordinary income excess using the following Method
statement:
Method statement Step 1. Work out the amount of the person's ordinary income
on a yearly basis. Step 2. Work out whether the person's ordinary income
exceeds the ordinary income free area. Step 3. If the person's ordinary income
exceeds the ordinary income free area, the person's ordinary income excess is
the person's ordinary income less the ordinary income free area. Step 4. If
the person's ordinary income does not exceed the ordinary income free area,
the person's ordinary income excess is nil.
"(2) If the person's ordinary income excess is nil, the person's annual rate
of home child care allowance is equal to the maximum rate of the allowance.
Note: For the maximum rate of home child care allowance see section 928.
"(3) If the person's ordinary income exceeds the ordinary income free area,
the person's annual rate of home child care allowance is worked out as
follows:
(a) divide the person's ordinary income excess by 4;
(b) take the result in paragraph (a) away from the maximum rate of
allowance; the result is the person's annual rate of home child care
allowance.
"Division 6-Payment of home child care allowance Commencement of home child
care allowance
"930. Home child care allowance becomes payable to a person on the first day
on which:
(a) the person is qualified for the allowance; and
(b) no provision of this Act makes home child care allowance not payable
to the person. Note 1: For 'qualification' see section 906. Note 2:
For the circumstances when home child care allowance is not payable
see section 908.
Payment by instalments
"931. Subject to section 932, a full instalment of home child care allowance
is payable to a person on each home child care allowance payday on which:
(a) the person is qualified for the allowance; and
(b) the allowance is payable to the person. Note: For 'home child care
allowance payday' see subsection 23(1).
Effect on instalments of backdating claim
"932. If:
(a) a person claims home child care allowance on a particular day (the
'claim day'); and
(b) the person's provisional commencement day is before the claim day; and
(c) there is a home child care allowance payday on or after the
provisional commencement day and before the claim day; then:
(d) no instalment of home child care allowance is payable on that payday;
and
(e) a full instalment of home child care allowance in respect of that
payday is payable on the first home child care allowance payday on or
after the claim day. Note 1: For 'provisional commencement day' see
section 910. Note 2: For 'home child care allowance payday' see
subsection 23(1).
Calculation of amount of instalment
"933. (1) The amount of an instalment of home child care allowance is the
amount worked out by dividing the amount of the annual rate of the allowance
by 26.
"(2) If an amount that is payable to a person on a home child care allowance
payday is not a multiple of 10 cents, the amount is, subject to subsection
(3), to be increased or decreased to the nearest multiple of 10 cents.
"(3) If the amount that is payable to a person on a home child care allowance
payday is not a multiple of 10 cents but is a multiple of 5 cents, the amount
is to be increased by 5 cents.
"(4) If, apart from this subsection, the amount of an instalment of home child
care allowance would be less than $1.00, the amount of the instalment is to be
increased to $1.00. Note: For 'home child care allowance payday' see
subsection 23(1).
Instalments to be paid to person or nominee
"934. (1) Subject to subsection (3), instalments of a person's home child care
allowance are to be paid to that person.
"(2) The Secretary may direct that the whole or a part of the instalments are
to be paid to someone else on behalf of the person.
"(3) If the Secretary makes a direction under subsection (2), the instalments
are to be paid in accordance with the direction.
Payment into bank account etc.
"935. (1) An amount that is to be paid to a person under section 934 is to be
paid in the manner set out in this section.
"(2) Subject to subsections (4) and (7), the amount is to be paid to the
credit of a bank account, credit union account or building society account
nominated and maintained by the person.
"(3) The account may be an account that is maintained by the person either
alone or jointly or in common with another person.
"(4) If the person has not nominated an account for the purposes of subsection
(2), then, subject to subsections (5) and (6), the amount is not to be paid.
"(5) If:
(a) an amount has not been paid because of subsection (4); and
(b) the person nominates an account for the purposes of subsection (2);
the amount is to be paid into that account.
"(6) The Secretary may direct that the whole or a part of the amount be paid
to the person in a different way to that provided for by subsection (2).
"(7) If the Secretary makes a direction under subsection (6), the home child
care allowance is to be paid in accordance with the direction.
Where home child care allowance payday would fall on public holiday etc.
"936. If the Secretary is satisfied that an amount of home child care
allowance that would normally be paid on a particular day cannot reasonably be
paid on that day (because, for example, it is a public holiday or a bank
holiday), the Secretary may direct that the amount be paid on an earlier day.
Payment of home child care allowance after death
"937. (1) If:
(a) a home child care allowance is payable to a person; and
(b) the person dies; and
(c) at the date of the person's death the person has not received an
amount of home child care allowance payable to him or her; and
(d) another person applies to receive that amount; and
(e) the application is made:
(i) within 26 weeks after the death; or
(ii) within a further period allowed by the Secretary in special
circumstances; the Secretary may pay the amount to the person
who, in the Secretary's opinion, is best entitled to it.
"(2) If the Secretary pays an amount of home child care allowance under
subsection (1), the Commonwealth has no further liability to any person in
respect of that amount of home child care allowance.
Secretary may make a declaration where more than one person qualified for home
child care allowance for the same child
"938. (1) If the Secretary is satisfied that more than one person qualifies
for home child care allowance in relation to the same child, the Secretary is
to make a declaration:
(a) stating that the Secretary is satisfied that each person is qualified
for home child care allowance in relation to the child; and
(b) specifying the share of the home child care allowance in relation to
the child that each person is to receive.
"(2) If the Secretary makes a declaration under subsection (1), the Secretary
is to give each person involved notice of the declaration. Note: Until the
declaration under this section is made, only one person can receive home child
care allowance in relation to the child (see subsection 912(1)).
"Division 7-Protection of home child care allowance Home child care allowance
to be absolutely inalienable
"939. (1) Subject to subsections (2) and (3) and section 1359, home child care
allowance is absolutely inalienable, whether by way of, or in consequence of,
sale, assignment, charge, execution, bankruptcy or otherwise.
Payments to Commissioner of Taxation at person's request
"(2) The Secretary may make deductions from the instalments of home child care
allowance payable to a person if the person asks the Secretary:
(a) to make the deductions; and
(b) to pay the amounts to be deducted to the Commissioner of Taxation.
Note: The Secretary must make deductions from a person's social
security payment if requested by the Commissioner of Taxation (see
section 1359).
"(3) The Secretary may make deductions from the instalments of home child care
allowance payable to a person if the person consents under section 1234A to
the Secretary making the deductions. Note: Section 1234A enables the Secretary
to recover a debt from a person other than the debtor if the person is
receiving a social security payment.
Effect of garnishee or attachment order
"940. (1) If:
(a) a person has an account with a financial institution; and
(b) instalments of home child care allowance payable to the person
(whether on the person's own behalf or not) are being paid to the
credit of that account; and
(c) a court order in the nature of a garnishee order comes into force in
respect of the account; the court order does not apply to the saved
amount (if any) in the account.
"(2) The saved amount is worked out as follows:
Method statement Step 1. Work out the total amount of home child care
allowance payable to the person that has been paid to the credit of the
account during the 4 week period immediately before the court order came into
force. Step 2. Subtract from that amount the total amount withdrawn from the
account during the same 4 week period: the result is the saved amount.
"(3) This section applies to an account whether it is maintained by a person:
(a) alone; or
(b) jointly with another person; or
(c) in common with another person.
"Division 8-Recipient obligations Secretary may require recipient to give
statement of recipient's tax file number
"941. The Secretary may require the recipient to give the Secretary a written
statement of the recipient's tax file number. Note 1: For the consequences of
a failure to comply with the requirement see section 913. Note 2: In some
cases the requirement can be satisfied by giving the Secretary a declaration
by the recipient about the recipient's tax file number and an authority by the
recipient to the Commissioner of Taxation to give the Secretary certain
information about the recipient's tax file number (see subsections 913(2) and
(3)).
Secretary may require recipient to give statement of partner's tax file number
"942. If a partner of a recipient of home child care allowance is in
Australia, the Secretary may require the recipient to give the Secretary a
written statement of the tax file number of the recipient's partner. Note 1:
For the consequences of a failure to comply with the requirement see section
914. Note 2: In some cases the requirement can be satisfied by giving the
Secretary a declaration by the partner about the partner's tax file number and
an authority by the partner to the Commissioner of Taxation to give the
Secretary certain information about the partner's tax file number (see
subsections 914(2) and (3)). Note 3: The Secretary may waive the requirement
in some cases (see subsection 914(4)).
Secretary may require notice of the happening of an event or a change in
circumstances
"943. (1) The Secretary may give a person who is receiving home child care
allowance a notice that requires the person to inform the Department if:
(a) a specified event or change of circumstances occurs; or
(b) the person becomes aware that a specified event or change of
circumstances is likely to occur.
"(2) An event or change of circumstances is not to be specified in a notice
under subsection (1) unless the occurrence of the event or change of
circumstances might affect the payment of the home child care allowance.
"(3) Subject to subsection (4), a notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the person is to give the information to the
Department; and
(d) must specify the period within which the person is to give the
information to the Department; and
(e) must specify that the notice is a recipient notification notice given
under this Act. Note: For 'recipient notification notice' see
subsection 23(1).
"(4) A notice under subsection (1) is not invalid merely because it fails to
comply with paragraph (3)(c) or (e).
"(5) The period specified under paragraph (3)(d) must end at least 14 days
after:
(a) the day on which the event or change of circumstances occurs; or
(b) the day on which the person becomes aware that the event or change of
circumstances is likely to occur.
"(6) If a notice requires the person to inform the Department of any proposal
by the person to leave Australia, subsection (5) does not apply to that
requirement.
"(7) A person must not, without reasonable excuse, refuse or fail to comply
with a notice under subsection (1) to the extent that the person is capable of
complying with the notice. Penalty: Imprisonment for 6 months. Note:
Subsections 4B(2) and (3) of the Crimes Act 1914 allow a court to impose an
appropriate fine instead of, or in addition to, a term of imprisonment.
"(8) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not
in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
Secretary may require person to give particular information relevant to
payment of home child care allowance
"944. (1) The Secretary may give a person who is receiving home child care
allowance a notice that requires the person to give the Department a statement
about a matter that might affect the payment of the home child care allowance
to the person.
"(2) Subject to subsection (3), a notice under subsection (1):
(a) must be in writing; and
(b) may be given personally or by post; and
(c) must specify how the statement is to be given to the Department; and
(d) must specify the period within which the person is to give the
statement to the Department; and
(e) must specify that the notice is a recipient statement notice given
under this Act. Note: For 'recipient statement notice' see subsection
23(1).
"(3) A notice under subsection (1) is not invalid merely because it fails to
comply with paragraph (2)(c) or (e).
"(4) The period specified under paragraph (2)(d) must end at least 14 days
after the day on which the notice is given.
"(5) A statement given in response to a notice under subsection (1) must be in
writing and in accordance with a form approved by the Secretary.
"(6) A person must not, without reasonable excuse, refuse or fail to comply
with a notice under subsection (1) to the extent that the person is capable of
complying with the notice. Penalty: Imprisonment for 6 months. Note:
Subsections 4B(2) and (3) of the Crimes Act 1914 allow a court to impose an
appropriate fine instead of, or in addition to, a term of imprisonment.
"(7) This section extends to:
(a) acts, omissions, matters and things outside Australia whether or not
in a foreign country; and
(b) all persons irrespective of their nationality or citizenship.
"Division 9-Continuation, variation and termination
"Subdivision A-General Continuing effect of determination Entitlement
determination
"945. (1) A determination that:
(a) a person's claim for home child care allowance is granted; or
(b) home child care allowance is payable to a person; continues in effect
until:
(c) the payment ceases to be payable under section 946 or 947; or
(d) a further determination in relation to the payment under section 951B
or 951C has taken effect. Note 1: A determination to grant a claim for
home child care allowance is made under section 923. Note 2: A
determination that home child care allowance is payable to a person is
necessary where the determination is to reverse an earlier
determination to cancel or suspend the allowance (see section 951E).
Note 3: If changes are made to a person's home child care allowance
payments because of the operation of a computer program, a
determination is taken to have been made in certain circumstances (see
section 951D).
Rate determination
"(2) A determination of the rate of home child care allowance continues in
effect until:
(a) the home child care allowance becomes payable at a lower rate under
section 949; or
(b) a further determination in relation to the home child care allowance
under section 951 or 951A has taken effect. Note: For paragraph (b)
see also section 951D (changes to payments by computer).
"Subdivision B-Automatic termination Automatic termination-recipient complying
with section 943 notification obligations
"946. If:
(a) a person is given a notice under section 943; and
(b) the notice requires the person to inform the Department of the
occurrence of an event or change in circumstances within a specified
period (the 'notification period'); and
(c) the event or change in circumstances occurs; and
(d) the person informs the Department of the occurrence of the event or
change in circumstances within the notification period in accordance
with the notice; and
(e) because of the occurrence of the event or change in circumstances:
(i) the person ceases to be qualified for home child care
allowance; or
(ii) home child care allowance would, but for this subsection, cease
to be payable to the person; and
(f) home child care allowance is not cancelled before the end of the
notification period; home child care allowance continues to be payable
to the person until the end of the notification period and then ceases
to be payable to the person.
Automatic termination-recipient not complying with section 943 notification
obligations
"947. If:
(a) a person is given a notice under section 943; and
(b) the notice requires the person to inform the Department of the
occurrence of an event or change in circumstances within a specified
period (the 'notification period'); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the
event or change in circumstances within the notification period in
accordance with the notice; and
(e) because of the occurrence of the event or the change in circumstances:
(i) the person ceases to be qualified for home child care
allowance; or
(ii) home child care allowance ceases to be payable to the person;
home child care allowance ceases to be payable to the person
immediately after the day on which the event or change in
circumstances occurs.
Changes to payments by computer following automatic termination
"948. If:
(a) a person is receiving home child care allowance on the basis of data
in a computer; and
(b) the home child care allowance is automatically terminated by the
operation of a provision of this Act; and
(c) the automatic termination is given effect to by the operation of a
computer program approved by the Secretary stopping payment of the
home child care allowance; there is taken to be a decision by the
Secretary that the automatic termination provision applies to the
person's home child care allowance. Note: The decision that is taken
to have been made is a decision of an officer for the purposes of
review by the Secretary (see sections 1239 and 1240) and the Social
Security Appeals Tribunal (see section 1247).
"Subdivision C-Automatic rate reduction Automatic rate reduction-recipient not
complying with section 943 notification obligations
"949. If:
(a) a person is given a notice under section 943; and
(b) the notice requires the person to inform the Department of the
occurrence of an event or change in circumstances within a specified
period (the 'notification period'); and
(c) the event or change in circumstances occurs; and
(d) the person does not inform the Department of the occurrence of the
event or change in circumstances within the notification period in
accordance with the notice; and
(e) because of the occurrence of the event or change in circumstances, the
person's rate of home child care allowance is to be reduced; home
child care allowance becomes payable to the person at the reduced rate
immediately after the day on which the event or change in
circumstances occurs.
Changes to payments by computer following automatic rate reduction
"950. If:
(a) a person is receiving home child care allowance on the basis of data
in a computer; and
(b) the home child care allowance is automatically reduced by the
operation of a provision of this Act; and
(c) the automatic reduction is given effect to by the operation of a
computer program approved by the Secretary reducing the rate of
payment of the home child care allowance; there is taken to be a
decision by the Secretary that the automatic rate reduction provision
applies to the person's home child care allowance. Note: The decision
that is taken to have been made is a decision of an officer for the
purposes of review by the Secretary (see sections 1239 and 1240) and
the Social Security Appeals Tribunal (see section 1247).
"Subdivision D-Determinations
Rate increase determination
"951. If the Secretary is satisfied that the rate at which home child care
allowance is being, or has been, paid is less than the rate provided for by
this Act, the Secretary is to determine that the rate is to be increased to
the rate specified in the determination. Note: For the date of effect of a
determination under this section see section 951F.
Rate reduction determination
"951A. If the Secretary is satisfied that the rate at which home child care
allowance is being, or has been, paid is more than the rate provided for by
this Act, the Secretary is to determine that the rate is to be reduced to the
rate specified in the determination. Note 1: A determination under this
section is not necessary in a case where an automatic rate reduction is
produced by section 949 (see subsection 945(2)). Note 2: For the date of
effect of a determination under this section see section 951G.
Cancellation or suspension determination
"951B. If the Secretary is satisfied that home child care allowance is being,
or has been, paid to a person to whom it is not, or was not, payable under
this Act, the Secretary is to determine that the home child care allowance is
to be cancelled or suspended. Note 1: A determination under this section is
not necessary in a case where an automatic termination is produced by section
946 or 947 (see subsection 945(1)). Note 2: For the date of effect of a
determination under this section see section 951G.
Cancellation or suspension for failure to comply with section 944, 1304 or
1305 notice
"951C. If:
(a) a person is given a notice under section 944, 1304 or 1305; and
(b) the person does not comply with the requirements set out in the
notice; the Secretary may determine that the home child care allowance
is to be cancelled or suspended. Note 1: This section will not apply
if section 951B applies. Note 2: For the date of effect of a
determination under this section see section 951G.
Changes to payments by computer
"951D. If:
(a) payment of home child care allowance to a person is based upon data in
a computer; and
(b) the rate of home child care allowance is increased or reduced, or home
child care allowance is cancelled or suspended, because of the
operation of a computer program approved by the Secretary; and
(c) the program causes the change for a reason for which the Secretary
could determine the change; the change is taken to have been made
because of a determination by the Secretary for that reason. Note: The
determination that is taken to have been made is a decision of an
officer for the purposes of review by the Secretary (see sections 1239
and 1240) and the Social Security Appeals Tribunal (see section 1247).
Resumption of payment after cancellation or suspension
"951E. (1) If the Secretary:
(a) cancels or suspends a person's home child care allowance under section
951B or 951C; and
(b) reconsiders the decision to cancel or suspend; and
(c) becomes satisfied that, because of the decision to cancel or suspend:
(i) the person did not receive home child care allowance that was
payable to the person; or
(ii) the person is not receiving home child care allowance that is
payable to the person; the Secretary is to determine that home
child care allowance was or is payable to the person.
"(2) The reconsideration referred to in paragraph (1)(b) might be a
reconsideration on an application under section 1240 for review or a
reconsideration on the Secretary's own initiative. Note: For the date of
effect of a determination under this section see section 951F.
"Subdivision E-Date of effect of determinations Date of effect of favourable
determination
"951F. (1) The day on which a determination under section 951 or 951E (the
'favourable determination') takes effect is worked out in accordance with this
section.
Notified decision-review sought within 13 weeks
"(2) If:
(a) a decision (the 'previous decision') is made in relation to a person's
home child care allowance; and
(b) a notice is given to the person advising the person of the making of
the previous decision; and
(c) the person applies to the Secretary under section 1240, within 13
weeks after the notice is given, for review of the previous decision;
and
(d) a favourable determination is made as a result of the application for
review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the
determination takes effect on the day on which the previous decision
took effect.
Notified decision-review sought after 13 weeks
"(3) If:
(a) a decision (the 'previous decision') is made in relation to a person's
home child care allowance; and
(b) a notice is given to the person advising the person of the making of
the previous decision; and
(c) the person applies to the Secretary under section 1240, more than 13
weeks after the notice is given, for review of the previous decision;
and
(d) a favourable determination is made as a result of the application for
review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the
determination takes effect on the day on which the person sought the
review.
Decision not notified
"(4) If:
(a) a decision (the 'previous decision') is made in relation to a person's
home child care allowance; and
(b) no notice is given to the person advising the person of the making of
the previous decision; and
(c) the person applies to the Secretary under section 1240 for review of
the previous decision; and
(d) a favourable determination is made as a result of the application for
review; and
(e) subsections (6), (7) and (8) do not apply to the determination; the
determination takes effect on the day on which the previous decision
took effect.
Notified change of circumstances
"(5) If the favourable determination is made following a person having advised
the Department of a change in circumstances, the determination takes effect on
the day on which the advice was received or on the day on which the change
occurred, whichever is the later.
Other determinations
"(6) In any other case, the favourable determination takes effect on the day
on which the determination was made or on such later day or earlier day (not
being a day more than 13 weeks before the determination was made) as is
specified in the determination.
Date of effect of adverse determination General
"951G. (1) The day on which a determination under section 951A, 951B or 951C
(the 'adverse determination') takes effect is worked out in accordance with
this section. Note: If the adverse determination depends on a discretion or
opinion and a person affected by the determination applies for review, the
Secretary may continue payment pending the outcome of the review (see section
1241 (internal review) and section 1251 (review by Social Security Appeals
Tribunal)).
"(2) The adverse determination takes effect on:
(a) the day on which the determination is made; or
(b) if another day is specified in the determination-on that day.
"(3) Subject to subsections (4), (5) and (6), the day specified under
paragraph (2)(b) must be later than the day on which the determination is
made.
Contravention of Act
"(4) If:
(a) the person whose home child care allowance is affected by the adverse
determination has contravened a provision of this Act (other than
section 944, 1304, 1305, 1306 or 1307); and
(b) the contravention causes a delay in making the determination; the day
specified under paragraph (2)(b) may be earlier than the day on which
the determination is made.
False statement or misrepresentation-suspension or cancellation
"(5) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the home child
care allowance has been paid to a person when it should have been
cancelled or suspended; the day specified under paragraph (2)(b) may
be earlier than the day on which the determination is made.
False statement or misrepresentation-rate reduction
"(6) If:
(a) a person has made a false statement or misrepresentation; and
(b) because of the false statement or misrepresentation, the rate at which
the home child care allowance was paid to a person was more than it
should have been; the day specified under paragraph (2)(b) may be
earlier than the day on which the determination is made.
"Division 10-Bereavement
"Subdivision A-Death of home child care allowance child Continuation of
qualification for home child care allowance for 4 weeks where person's only
home child care allowance child dies
"951H. If:
(a) a person is receiving home child care allowance in relation to a
child; and
(b) the child dies; and
(c) the child was the only home child care allowance child of the person;
the person is qualified for home child care allowance for the period
of 4 weeks that starts on the day on which the child dies (the
'bereavement period').
Continued payment of home child care allowance
"951I. If a person is qualified for payments under section 951H in relation to
the death of a child, the person's home child care allowance rate, during the
bereavement period, is to be calculated as if the child had not died.
"Subdivision B-Death of recipient Death of recipient of home child care
allowance during bereavement period
"951J. If:
(a) a person is receiving home child care allowance; and
(b) the person dies; and
(c) the person:
(i) was qualified at the time of the person's death for payments
under section 951H in relation to the death of a home child
care allowance child; or
(ii) would have been so qualified if the person had not died; there
is payable to such person as the Secretary thinks appropriate
an amount equal to the amount of home child care allowance that
would have been payable to the person under section 951I if the
person had not died.
Death of recipient of home child care allowance
"951K. (1) If:
(a) a person is receiving home child care allowance; and
(b) the person dies; there is payable to any person that the Secretary
thinks fit, the amount of home child care allowance that would have
been payable to the deceased person on the next home child care
allowance payday after his or her death if the person had not died.
Note: For 'home child care allowance payday' see subsection 23(1).
"(2) If an amount of home child care allowance is paid under subsection (1),
the Commonwealth has no further liability to any person in respect of that
amount of home child care allowance in respect of the deceased person.".
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