Editors --- "Baby bonus: legally responsible for care" [2012] SocSecRpr 11; (2012) 14(2) Social Security Reporter, Article 2

• BILLINGTON and SECRETARY TO THE DFHCSIA
• Background
• The law
• Decision
• Formal decision

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Baby bonus: legally responsible for care

BILLINGTON and SECRETARY TO THE DFHCSIA

(2012/181)

Decided: 27th March 2012 by P. Wulf

Background

Billington gave birth to her child on 30 March 2011. At 6:02 pm the next day a temporary assessment order was made by the local Magistrates Court whereby Billington’s child was placed in care. Since that date the child had remained in foster care.

Subsequently Billington claimed baby bonus. Centrelink decided that she was eligible for this payment for one day - 30 March, as her child was legally in her care on that day.

This decision was upheld by the SSAT.

The law

The primary issue was whether Billington had ‘legal responsibility for the care of’ her child. Section 22(5) of A New Tax System (Family Assistance) Act 1999 states:

(5) The circumstances surrounding legal responsibility for the care of the individual are:

(a) the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or

(b) under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or

(c) the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.

Decision

Evidence was given that Billington provided care for her child while he was in hospital in the same way as any other new mother. However, the Tribunal found that the legislation was clear, in that Billington was not entitled to baby bonus after the court order was made at 6 pm on 31 March.

The Tribunal noted that it could be argued that Billington only had legal responsibility for 24 hours as the child was born at 6 pm on 30 March and removed from Billington’s care 24 hours later. The Tribunal found that, in reality, Billington had legal responsibility for her child for more than 75% of the day, 31 March 2011.

The Tribunal therefore concluded that Billington was legally responsible for her child and provided care to her child for more than 50% of 31 March and concluded that she was therefore eligible for maternity payment on both 30 March and 31 March 2011.

Formal decision

The AAT set aside the decision of the SSAT and substituted the decision that Billington was entitled to be paid baby bonus for 30 and 31 March 2011. From 1 April 2011 no baby bonus was payable to her. [R.P.]