What is Child Care Benefit?
14.30 CCB is an income-tested payment that assists eligible parents and carers with the cost of child care. Other CCB objectives are 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’. CCB is particularly relevant in the family violence context as increased amounts of CCB are available when children are at risk of ‘serious abuse or neglect’.
14.31 CCB is available to parents or carers responsible for child care costs where their children attend ‘approved child care services’—that is, services approved for the purposes of family assistance law. The FAO website states that approved child care services meet certain standards and requirements, including ‘having a licence to operate, qualified and trained staff, being open certain hours, and meeting health, safety and other quality standards’.
14.32 Approved care may be provided by: long day care services; family day care services; in-home care services; occasional care services; and outside school hours care services.
14.33 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. All eligible parents and carers may receive up to 24 hours CCB per week for care provided by an approved child care service. Parents and carers may receive up to 50 hours per week where they meet a ‘work/training/study test’, or other conditions provided for in the legislation. Parents or carers generally lodge a claim for CCB with the FAO, although in certain circumstances the approved child care service may lodge the claim, as described below.
14.34 The FAO is responsible for determining eligibility for, and calculating, CCB. The Department of Education, Employment and Workplace Relations (DEEWR) administers CCB to families through the FAO, and administers payment of CCB to approved child care services.
Child at risk of serious abuse or neglect
14.35 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 CCB, or, where a 24-hour limit would have applied, raise the limit to 50 hours. The FAO may also pay CCB at a higher rate.
14.36 The higher rate of CCB is described in the Family Assistance Guide and elsewhere—although not in family assistance legislation—as the Special Child Care Benefit (SCCB). Increased weekly hour limits for CCB due to risk are sometimes also called SCCB, in particular by DEEWR, both in its submission and correspondence regarding this Inquiry, and in its publication Special Child Care Benefit for Children at Risk: Fact Sheet for Approved Child Care Services.
14.37 The higher rate and increased weekly hours of CCB are available only in the form of reduced child care fees. Lump sums at the end of the financial year are not available for these benefits. An approved child care service may approve the higher rate of CCB or increase weekly hour limits for a maximum of 13 weeks. The service may apply to the FAO for approval of further periods of the higher rate or increased weekly hour limits of CCB. The additional weekly hours can be paid at the higher rate.
14.38 The higher rate and increased weekly hours of CCB have a protective function. DEEWR 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, 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.
14.39 The protective function is also explained in the Explanatory Memorandum, which states that, even though a child may be at risk, a decision may not necessarily be made to increase the weekly hours of CCB, unless increased weekly hours help the ‘risk situation’. It provides the following example:
a child may be at risk only on Mondays because of the particular drinking habits of one member of the family. If the child already attends care on Mondays, there is no purpose served in approving additional hours of care for the child.
14.40 In relation to the higher rate of CCB, the Explanatory Memorandum states that this is ‘an important element in persuading the child’s carer to place the child into care and therefore away from the at risk situation’, and that ‘[t]he idea is that the service would exercise the discretion if satisfied that the availability of a higher rate would assist the … at risk situation’.
14.41 The ALRC considers that the eligibility threshold of ‘serious abuse’ appears at odds with the protective function described above. In accordance with the Family Assistance Act, even if a higher rate, or an increased weekly limit, of CCB, may address a risk of abuse to a child, such increased amounts of CCB will not be available unless the risk faced by the child is one of ‘serious abuse’. This 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. Further, it implies that some forms of abuse of a child are not ‘serious’.
14.42 Most stakeholders commenting on this issue generally considered that the word ‘serious’ should be removed from the legislative eligibility requirement of ‘serious abuse or neglect’. For example, Welfare Rights Centre NSW (WRC NSW) submitted that the ‘serious abuse’ requirement is flawed.
14.43 The DEEWR submission presented a different position, and stated that ‘serious’ should be retained in the legislation:
‘Serious’ as a descriptor, assists decision makers to further understand and apply SCCB policy. It is not a barrier to access SCCB but ensures that approval is evidence based, appropriate and funding is delivered to those truly in need.
14.44 DEEWR also noted that removing the term serious ‘would have significant fiscal implications to Child Care Benefit appropriations and would require additional modelling and funds to support it’.
14.45 The ALRC agrees that there may be a need for a qualifying mechanism in the Family Assistance Act or the Family Assistance Guide to ensure that approved service providers’ decisions are thoroughly considered and evidence based, CCB is delivered to those most in need, and the provisions operate within fiscal boundaries. However, for the reasons outlined above, the ALRC does not consider that the qualifying mechanism constituted by the ‘serious abuse’ threshold is appropriate. If the Australian Government and relevant departments consider that a qualifying mechanism is required, a different formulation should be inserted into the legislation or the Family Assistance Guide.
14.46 The WRC NSW and the NWRN have suggested that such a qualifying mechanism may instead apply to the level of the risk of abuse, rather than the nature of the abuse. Another option may be for legislation to require that the approved service provider has ‘reasonable grounds’ to consider that a child is at risk of abuse or neglect. An advantage of the latter approach is that it reflects, to some extent, the mandatory reporting provisions of many states and territories.
Definition of abuse
14.47 Neither family assistance legislation nor the Family Assistance Guide defines the terms ‘abuse’ or ‘serious abuse’. The Child Care Service Handbook 2010–2011 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?’. 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 (ie, neglect) and commission (i.e., abuse).
14.48 The resource sheet also describes five main types of child abuse and neglect: physical abuse; emotional maltreatment; neglect; sexual abuse; and witnessing family violence.
14.49 While this is a comprehensive definition, the ALRC considers that the applicable definition of abuse should be given greater visibility, as understandings of what constitutes abuse informs decision making regarding increased amounts of CCB. The ALRC therefore considers that the Family Assistance Guide should provide a definition of abuse. Stakeholders generally agreed that the Family Assistance Guide should provide such a definition.
14.50 The definition of abuse provided in the Family Assistance Guide may be based on the definition provided by the National Child Protection Clearinghouse, to which approved child care services are currently referred. This would not change existing practice, but should increase the visibility of the definition, and consequently transparency around the administration of increased CCB for children at risk of abuse. It should also improve consistency in decision making in this area, by addressing ‘the potential for varying application’ of this term.
14.51 Including a definition in the Family Assistance Guide may also assist parents and carers, child care services, and the FAO in considering eligibility and determining claims for increased rates and weekly hour limits of CCB—particularly if the definition is reflected in the CCB-related resources produced by DEEWR.
14.52 As an alternative to the above definition, 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). In National Legal Aid’s comments on this issue, it referred to the Bill and submitted that the ‘definition of abuse should be common across Commonwealth jurisdictions’.This would provide the advantages of consistency and shared understanding of abuse across Commonwealth legal frameworks. At the time of writing, the Bill is before the Senate.
14.53 The ALRC has not recommended that ‘serious abuse’ be defined, given its recommendation that the word serious should be removed from family assistance legislation in relation to increased CCB.
14.54 The Family Assistance Act provides that increased weekly limits in relation to CCB are available in certain circumstances, including where a child is at risk of serious abuse or neglect—as discussed above, and in ‘exceptional circumstances’. In summary, a person may obtain CCB for more than 24 hours as an exception from the ‘work/training/study test’, or for more than 50 hours, due to ‘exceptional circumstances’.
14.55 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’. Itsets out anon-exhaustive list of exceptional circumstances, including circumstances such as hospitalisation, jury duty or volunteer work in an emergency or disaster. The list does not specifically include family violence. However, 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’.
14.56 In Family Violence and Commonwealth Laws Discussion Paper 76 (2011), the ALRC considered that there may be merit in the Family Assistance Guide specifically listing family violence in its list of exceptional circumstances for eligibility for increased weekly limits of CCB. The ALRC considered that this may assist victims of family violence during periods when accessing higher levels of child care may assist them to improve their safety, for example, when victims need to attend court.
14.57 However, DEEWR has advised that approved services can apply the SCCB provisions for families in these circumstances (as noted above, DEEWR’s use of the term SCCB captures increased weekly limits of CCB hours as well as the higher SCCB rate). DEEWR stated that a purpose of SCCB is to act as an ‘early intervention service to support vulnerable families and children’, and this accommodates family violence situations. It also stated that it is
happy to expand upon SCCB policy information in the Child Care Services Handbook and the SCCB factsheet to ensure that services understand and are aware that domestic violence fall[s] into SCCB criteria.
14.58 The ALRC therefore considers that, as victims of family violence may already access higher weekly limits of CCB, and also the higher CCB rate, it is unnecessary to make a recommendation in this regard. The ALRC further considers that the expansion of policy information, in addition to the recommendations in Chapter 4, may increase awareness regarding the availability of increased amounts of CCB in family violence cases.
Recommendation 14–3 A New Tax System (Family Assistance) Act 1999 (Cth) provides that increases in weekly Child Care Benefit hours and higher rates of Child Care Benefit are payable when a child is at risk of ‘serious abuse or neglect’. The Australian Government should amend A New Tax System (Family Assistance) Act 1999 (Cth) to omit the word ‘serious’, so that such increases to Child Care Benefit are payable when a child is at risk of abuse or neglect.
Recommendation 14–4 The Family Assistance Guide should provide a definition of ‘abuse’.
 FaHCSIA, Family Assistance Guide <www.fahcsia.gov.au/guides_acts/> at 1 November 2011, [1.2.4].
A New Tax System (Family Assistance) Act 1999 (Cth) pts 3–4.
 This term is used in both A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).
 Ibid s 195(1). A New Tax System (Family Assistance) Act 1999 (Cth) addresses eligibility for CCB at pt 3 div 4.
 Family Assistance Office website <www.familyassist.gov.au> at 16 February 2011.
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 194. CCB is also available in certain circumstances when child care is provided by a person approved as a ‘registered carer’ by the FAO, for example, a grandparent, friend, relative or nanny: see Discussion Paper, Ch 12.
A New Tax System (Family Assistance) Act 1999 (Cth) ss 41(2), 43, 44; A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 219B, 219BA; FaHCSIA, Family Assistance Guide <www.fahcsia.gov.au/guides_acts/> at 1 November 2011, [1.2.4.].
A New Tax System (Family Assistance) Act 1999 (Cth) s 53(3).
 Ibid s 54(2), (3).
 Ibid s 54.
 Family Assistance Office, Information Booklet About Your Claim for Family Assistance.
 DEEWR, Child Care Service Handbook, 2010–2011 (2010), 3–4.
A New Tax System (Family Assistance) Act 1999 (Cth) s 55.
 Ibid s 54.
 Ibid s 76(1). The higher rate of CCB may also be available to families experiencing hardship. This Report considers the higher rate of CCB only in relation to children at risk of abuse.
 FaHCSIA, Family Assistance Guide <www.fahcsia.gov.au/guides_acts/> at 1 November 2011, [18.104.22.168].
 DEEWR, ‘Special Child Care Benefit for Children at Risk: Fact Sheet for Approved Child Care Services’ (2011) . However, the Family Assistance Guide provides that increased weekly limits of CCB due to risk is not the same as SCCB. This indicates that there may be differences in the use of terminology across departments: FaHCSIA, Family Assistance Guide <www.fahcsia.gov.au/guides_acts/> at 1 November 2011, [22.214.171.124], [126.96.36.199].
A New Tax System (Family Assistance) Act 1999 (Cth) ss 54(10), 55(6), 73.
 Ibid ss 54, 55, 77.
 Ibid ss 54, 55, 81; DEEWR, Child Care Service Handbook, 2010–2011 (2010), 162, 208.
 DEEWR, Child Care Service Handbook, 2010–2011 (2010), 194, 196.
 Ibid, 194, 196; Department of Education, Employment and Workplace Relations, Special Child Care Benefit for Children at Risk: Fact Sheet for Approved Child Care Services.
 Department of Education, Employment and Workplace Relations, Special Child Care Benefit for Children at Risk: Fact Sheet for Approved Child Care Services.
 Explanatory Memorandum, A New Tax System (Family Assistance and Related Measures) Bill 2000 (Cth), 29.
 Ibid, 24, 38. See also DEEWR, Submission CFV 118.
 The ALRC proposed this approach in the Discussion Paper: Proposal 12–4. It was supported by National Legal Aid, Submission CFV 164; National Welfare Rights Network, Submission CFV 150; AASW (Qld) and WRC Inc (Qld), Submission CFV 137; ADFVC, Submission CFV 104; Women’s Information and Referral Exchange, Submission CFV 94; Confidential, Submission CFV 89; WEAVE, Submission
 WRC (NSW), Submission CFV 70.
 DEEWR, Submission CFV 118.
 National Welfare Rights Network, Submission CFV 150; WRC (NSW), Submission CFV 70.
 See D Higgins and others, Mandatory reporting of child abuse (2010), prepared for the Australian Institute of Family Studies.
 DEEWR, Child Care Service Handbook, 2010–2011 (2010), 197. The Child Care Service Handbook 2010–2011 provides ‘guidance and assistance to approved child care services’: Ibid, iii.
 R Price-Robertson and L Bromfield, National Child Protection Clearinghouse Resource Sheet No 6: What is Child Abuse and Neglect? (2009), prepared for the Australian Institute of Family Studies.
 The ALRC proposed this in the Discussion Paper: Proposal 12–5. This also proposed that neglect should be defined. Although the ALRC considers that neglect should be defined in the Family Assistance Guide, such a recommendation is outside the scope of this Inquiry.
 National Legal Aid, Submission CFV 164; AASW (Qld) and WRC Inc (Qld), Submission CFV 137; ADFVC, Submission CFV 104; Women’s Information and Referral Exchange, Submission CFV 94; Confidential, Submission CFV 89; WEAVE, Submission CFV 85. However, the NWRN considered that the term should be given its ordinary meaning, ‘informed by guidance which should be set out in the Family Assistance Guide’: National Welfare Rights Network, Submission CFV 150.
 The Commonwealth Ombudsman considered that the term ‘serious abuse’ had such potential, and considered it should be defined in policy or law: Commonwealth Ombudsman, Submission CFV 54. It did not comment on the term ‘abuse’, but in the ALRC’s consideration, the point is also applicable in this context.
 National Legal Aid, Submission CFV 164. See discussion in Ch 3.
 This is explained in detail in Ch 12 of the Discussion Paper.
 FaHCSIA, Family Assistance Guide <www.fahcsia.gov.au/guides_acts/> at 1 November 2011, [1.1.E.50].
 DEEWR, Child Care Service Handbook, 2010–2011 (2010), 158.
 Discussion Paper Ch 12.
 DEEWR, Correspondence, 24 October 2011.