Child Care Benefit

Background

12.51 Child Care Benefit (CCB) is an income-tested payment that assists eligible parents and carers with the cost of child care. In addition to assisting parents and carers with child care costs, CCB aims to provide incentives for parents and carers with low and middle incomes to participate in the workforce and community, and to support parents and carers to ‘balance work and family commitments’.^[70]

12.52 CCB is available to parents or carers responsible for child care costs where their children attend ‘approved child care services’^[71]—that is, services approved for the purposes of family assistance law.^[72] The FAO website states that approved child care services meet certain standards and requirements:

This includes having a licence to operate, qualified and trained staff, being open certain hours, and meeting health, safety and other quality standards.^[73]

12.53 The following services may provide approved care:

• long day care services;
• family day care services;
• in-home care services;
• occasional care services; and
• outside school hours care services.^[74]

12.54 CCB may be paid to the approved child care service and passed on to the person as a fee reduction; or the person may pay child care fees and claim CCB as a lump sum at the end of the financial year.^[75] All eligible parents and carers may receive up to 24 hours CCB per week for care provided by an approved child care service.^[76] Parents and carers may receive up to 50 hours per week where they meet a ‘work/training/study test’,^[77] or other conditions provided for in the legislation.^[78]

12.55 CCB is also available for up to 50 hours per week where child care is provided by a person who has been approved as a registered carer by the FAO, and parents or carers meet a work/training/study test.^[79] Registered carers may include, for example, grandparents, friends, relatives or nannies. CCB for registered care is only available in a lump sum for child care for which parents or carers have already paid.^[80]

12.56 The work/training/study tests differ depending on whether care is provided by an approved child care service or a registered carer. To satisfy the work/training/study test, applicants using approved child care services must undertake 30 hours per fortnight of work, training or study. Applicants using registered care are not required to meet a minimum amount of work, training or study hours.^[81]

12.57 Parents or carers generally lodge a claim for CCB with the FAO,^[82] although in certain circumstances described below, the approved child care service may lodge the claim. The CCB rate when approved child care services provide care is substantially higher than the CCB rate when registered carers provide care. For example, the
2011–12 maximum CCB rate for non school-age children for 50 hours is $189 for approved child care and $31.60 for registered care.^[83]

Exceptional circumstances

More than 24 hours CCB

12.58 As noted above, to obtain more than 24 hours CCB, and up to 50 hours CCB, eligible parents and carers using approved child care services must meet a work/training/study test. Both the applicants and their partners must satisfy the test, unless applicants, their partners or their families are ‘exceptions’ from the test.^[84]

12.59 The exceptions to the work/training/study test are provided for in the family assistance legislation and the Family Assistance Guide.^[85] The exceptions may apply where an applicant or his or her partner is incarcerated, is with disability, cares for a child or adult with disability, or lives overseas. Further exceptions are available for families using approved care child care services: for example, where a grandparent or great-grandparent is the applicant; a child is at risk of serious abuse or neglect (discussed below); or there are ‘exceptional circumstances’.^[86]

12.60 The Family Assistance Guide defines ‘exceptional circumstances’ as ‘short-term family crises that result in the parent, and their partner, if they have one, being unable to care for their child for a period longer than 24 hours per week’.^[87] Anon-exhaustive list of exceptional circumstances is set out:

• hospitalisation;
• short term physical incapacity;
• short term episodes of psychological or psychiatric illness;
• short term carer responsibilities for other family members;
• serious illness of a sibling;
• intensive medical treatment;
• voluntary work in an emergency or disaster, such as bush fires, storms or floods;
• travel to attend a funeral or bereavement;
• travel for resolution of a family member’s estate; and
• jury duty or appearance as a witness.^[88]

12.61 The list does not specifically include family violence. The Child Care Service Handbook 2010–2011 provides that it is not possible to list all exceptional circumstances, and that each case is to be ‘considered on its merits’.^[89]

12.62 To apply for increased hours of CCB for approved care on the basis of exceptional circumstances, the parent or carer must complete the ‘Claim for Special Child Care Benefit and/or increased weekly limit of hours’form with the approved child care service, and include supporting documents. The service sends the form to the FAO for determination. The FAO may grant the claim for the period of time considered necessary, up to a maximum of 13 weeks. Parents or carers may re-apply for further periods where the exceptional circumstances continue.^[90] In these circumstances, payment delivery of CCB is only available in the form of reduced child care fees.^[91]

More than 50 hours weekly child care benefit

12.63 More than 50 hours of CCB per week may be available to families where both parents, or the sole parent, have work, study or training commitments which make them unavailable to care for the child for more than 50 hours per week. Other circumstances where more than 50 hours of CCB is available are where a child is at risk of serious abuse or neglect—discussed below—or where the family is experiencing exceptional circumstances.^[92]

12.64 The exceptional circumstances criteria, described above in relation to exceptions from the work/training/study test, apply.^[93] The procedures described above in relation to applications, approvals, and payment delivery also apply.^[94]

Child at risk of serious abuse or neglect

Increased weekly hours and higher rates of Child Care Benefit

12.65 Where an approved child care service considers a child is at risk of ‘serious abuse or neglect’, the FAO may grant more than 50 hours per week of approved child care,^[95] or, where a 24 hour limit would have applied, raise the limit to 50 hours.^[96] The FAO may also pay CCB at a higher rate.^[97] The higher rate of CCB is described in the Family Assistance Guide and elsewhere—although not in the family assistance legislation—as the Special Child Care Benefit (SCCB). SCCB may be approved for up to the total amount of weekly child care fees.^[98]

12.66 Increased weekly hour limits for CCB due to risk are sometimes also called SCCB, as on the‘Claim for Special Child Care Benefit and/or increased weekly limit of hours’form.^[99] However, the Family Assistance Guide provides that CCB for more than 50 hours of approved care due to risk is not the same as SCCB.^[100]

12.67 If an approved service believes a child is at risk of serious abuse or neglect, it may approve SCCB or increase weekly hour limits for a maximum of 13 weeks.^[101] The service may apply to the FAO for approval of further periods of SCCB or increased weekly hour limits.^[102] The additional weekly hours can be paid at the SCCB rate.^[103]

12.68 SCCB and increased weekly hour limits are available only in the form of reduced child care fees.^[104] Lump sums at the end of the financial year are not available for these benefits.

12.69 Neither family assistance legislation nor the Family Assistance Guide defines the terms ‘abuse’ or ‘serious abuse’. The Child Care Handbook directs child care services to a ‘commonly accepted definition of abuse and neglect’ in the National Child Protection Clearinghouse’s resource sheet, ‘What is Child Abuse and Neglect?’.^[105] This resource sheet provides a broad definition of child abuse and neglect (or child maltreatment):

any non-accidental behaviour by parents, caregivers, other adults or older adolescents that is outside the norms of conduct and entails a substantial risk of causing physical or emotional harm to a child or young person. Such behaviours may be intentional or unintentional and can include acts of omission (i.e., neglect) and commission (i.e., abuse).^[106]

12.70 The resource sheet describes five main types of child abuse and neglect:

• physical abuse;
• emotional maltreatment;
• neglect;
• sexual abuse; and
• witnessing family violence.^[107]

Protective function

12.71 SCCB and increased weekly hours of child care have a protective function. The Department of Education, Employment and Workplace Relations and the Office of Early Childhood Education and Childcare state that the SCCB—including additional hours of CCB—is designed to support attendance at child care, where costs are a barrier,^[108] so that:

• the amount of time the child spends in the risk environment is reduced
• the amount of time the child spends in a stable and developmentally beneficial environment is maintained or increased
• the child remains ‘visible’ in the community and opportunities to link the family with other appropriate services are increased
• the parent/carer has an opportunity for respite or to seek assistance from other agencies such as health and family support services.^[109]

Submissions and consultations

12.72 The Family Assistance Issues Paper did not raise the issue of exceptional circumstances in relation to obtaining more than 24 or 50 hours of CCB, and the ALRC has not received stakeholder input or feedback on these issues. The Family Assistance Issues Paper did address increased CCB where children are at ‘risk or serious abuse or neglect’, and in this context the ALRC asked whether:

• increases in weekly CCB hours and higher rates of CCB are sufficiently accessible in cases of family violence, and whether reforms are needed to improve accessibility;^[110]

• the legislative requirement that the child be at ‘risk of serious abuse’ serves as an unreasonable barrier to eligibility for higher rates of CCB and increased weekly hours of CCB;^[111]

• family assistance legislationshould be amended to include definitions of ‘abuse’ or ‘serious abuse’, and whether the Family Assistance Guide should provide definitions of ‘abuse’ or ‘serious abuse.^[112]

Accessibility

12.73 In relation to accessibility, the Ombudsman reported that, while it does not have complaint data in relation to this issue, it is possible that the FAO may be missing opportunities

to identify customers who are eligible for increased hours and rates of CCB. We are aware that many customers receiving family assistance payments are encouraged to claim and manage their entitlements via online self-service arrangements. While these arrangements are convenient and preferred by many customers, they also minimise the opportunities for direct contact with FAO staff and, in turn, minimise opportunities for an assessment of any increased assistance needs.^[113]

12.74 The Welfare Rights Centre NSW stated increased CCB should be available not only when a child care service considers a child at risk of serious abuse or neglect, but also where

Centrelink forms the opinion (e.g. during an assessment with a social worker) that a child is at risk of abuse and/or that granting the special rate may reduce the risk to the child.^[114]

Serious abuse

12.75 Generally stakeholders criticised the legislative requirement of serious abuse or neglect. Stakeholders submitted that the ‘serious abuse’ requirement is flawed,^[115] and that the word ‘serious’ should be removed.^[116] The ADFVC commented that

Research has shown that all children exposed to domestic violence are at risk of serious harm and, therefore, all children in these situations should be entitled to additional Child Care Benefit and increased weekly hours of Child Care Benefit.^[117]

12.76 The Welfare Rights Centre NSW suggested that if there must be a qualifying mechanism, it should apply to the level of risk rather than the nature of the abuse—for example, a ‘not insignificant’ risk.^[118]

Definitions

12.77 Stakeholders generally supported the definitions being included in legislation or policy. Several stakeholders considered that abuse and serious abuse should be defined in both the Family Assistance Guide and family assistance legislation.^[119] The Ombudsman commented that there would be value in defining ‘serious abuse’ in either legislation or the Family Assistance Guide, given ‘the potential for varying applications of the term’.^[120] The Australian Association of Social Workers (AASW) stated that it would support legislative definitions of abuse or serious abuse

if it were going to enhance procedural certainty for victims of violence. If it were not going to enhance procedural certainty for victims then this may be better placed in policy supporting the legislation.^[121]

12.78 National Legal Aid submitted that definitions of abuse should be consistent across jurisdictions. It noted that the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 is before Parliament.^[122] The Bill contains a revised definition of child abuse.

12.79 The Welfare Rights Centre NSW considered that abuse ‘should be given its ordinary meaning’. As noted above it considered that the word ‘serious’ should be removed from the provision, and so did not comment on the definition of serious abuse.^[123]

ALRC’s views

Exceptional circumstances

12.80 The ALRC considers that there is merit in the Family Assistance Guide specifically listing family violence as a type of exceptional circumstance, for the purposes of obtaining CCB for more than 24 hours—as an exception from the work/training/study test—or for more than 50 hours, when care is provided by approved child care services. These short term additional benefits may improve the accessibility of child care, which may assist victims when they and their families are escaping a person who has used family violence. Increased weekly payments of CCB may also be useful for victims during periods in which they are obtaining services or attending court for the purpose of improving their safety.

Child at risk of serious abuse or neglect

Accessibility

12.81 The proposed package of reforms to increase customer awareness of how family violence affects entitlements, and to improve identification of family violence by the CSA and FAO, should improve accessibility to increased CCB where children are at risk of abuse. These proposed reforms are discussed above in relation to the baby bonus, FTB for informal carers, and exemptions from tax file number requirements.

12.82 The ALRC notes stakeholder suggestions that Centrelink social workers should be able to approve increased CCB on the basis of risk of abuse or neglect. In the ALRC’s preliminary consideration, such a reform is unnecessary. Rather, when Centrelink social workers become aware that increased CCB may be available—whether due to risk of abuse or neglect or exceptional circumstances—they should inform the customer, and refer the person to the approved child care service.

Serious abuse

12.83 The ALRC considers that risk of serious abuse and neglect is an inappropriately high threshold for CCB. It requires approved child care services to make judgments about the severity of abuse, and to exclude cases of abuse that are not deemed to meet the threshold. The ALRC considers that children at risk of abuse should generally benefit from the protective function of increased CCB.

12.84 In the ALRC’s preliminary view, the Family Assistance Act should therefore be amended to provide that increases in weekly CCB hours and higher rates of CCB are available when children are at risk of abuse and neglect. An amendment to the Family Assistance Act will require a consequential amendment to s 71E(5) of the Family Assistance (Administration) Act.

Definitions

12.85 The ALRC considers that the Family Assistance Guide should be amended to define abuse and neglect. This may increase visibility of the definition and increase transparency around the administration of increased CCB for children at risk of abuse or neglect. This may assist parents and carers, child care services, and the FAO in considering eligibility and determining claims for SCCB and increases in weekly hours of CCB. If the definition is provided for in the Family Assistance Guide, it is the ALRC’s preliminary view that it is not necessary to insert the definition into family assistance legislation.

12.86 The ALRC does not propose that serious abuse be defined, given the proposal that the word serious should be removed from family assistance legislation in relation to increased CCB.

12.87 The Family Assistance Guide definition of abuse or neglect may be based on the comprehensive definition provided by the National Child Protection Clearinghouse, to which approved child care services are currently referred. Alternatively, if the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 is passed, and the definition of child abuse in the Family Law Act is revised, the Family Assistance Guide could reflect the Family Law Act definition of child abuse (which includes neglect). This would provide the advantages of consistency and shared understanding of abuse across legal frameworks.