1.1.D.70 Dependent child

Usage

This topic describes the definition of 'dependent child' and includes issues that may affect whether a child is a dependent child or not, such as:

• temporary absences
• change of care
• disputed care
• children at risk of harm
• children that are inmates of psychiatric institutions
• foster care
• pension income test - expanded definition
• carer allowance, and
• 'with dependent child' rate of JSP and YA (job seeker) where a person has at least 14% care of a child.

This definition applies to all payments under the social security law.

Child under 16

A young person is a dependent child of an adult if:

• the adult has legal responsibility (1.1.L.33), either alone or jointly with another person, for the day-to-day care, welfare and development of the young person AND the young person is in the adult's care, OR
• the young person is not a dependent child of someone else under the previous point AND the young person is wholly or substantially in the adult's care.

Each component of this definition must be met in order for a person to be assessed as having a dependent child. This includes:

• legal responsibility for the child. A person is taken as having legal responsibility for the young person if, for example
  • they are the child's parent and there is not a court order specifically removing the person's legal responsibility, for example a court order giving sole custody of the child to one parent or another
  • they are another person to who court order has conferred legal responsibility for a child.
    
    Example: Sheryl is the mother of Rickie-Lee (aged 4) and has recently separated from Bob. There is a written court order giving Sheryl sole custody of Rickie-Lee. Sheryl is therefore solely legally responsible for Rickie-Lee.
• responsibility for the day-to-day care, welfare and development of the child. A person is taken as having responsibility for the day-to-day care, welfare and development of the young person if
  • the person's involvement with the child is sufficient to allow them to influence the welfare and development of the child on a day-to-day basis. In instances of shared care, where the person may still have a legal responsibility for the child, but only sees the child in limited circumstances (for example, one night per week), it would be difficult for that person to have day-to-day care of the child.
• being in the adult's care. The young person is in the adult's care if
  • the person is actually providing care for the child. It would not, for example, be sufficient for a person to show a court order which provides them with shared custody of a child if that person could not demonstrate that they were actually fulfilling their responsibilities in caring for the child for the time specified in the order.
  • Care should be taken to ensure that a child is not simply assumed to be the dependent child of their parent, but the assessment should include a determination that the person legally responsible for the day-to-day care, welfare and development of the child is actually providing care for the child.

If the child cannot rightly be regarded the dependent child of any person under the above components of the first part of the dependent child definition, for example the person with legal responsibility is not caring for the child, then the child is the dependent child of any person who is wholly or substantially caring for the child.

In many instances, this might be a grandparent or other relative of the child who has taken on the informal responsibility of caring for the child where the parent is unable to care for the child.

Child 16 years or older

A young person who has turned 16 but is under 22 can still be a dependent child of the recipient if:

• they are wholly or substantially dependent on the recipient, AND
• the child's income in the financial year will not exceed the permissible child earnings limit for a dependent between 16 and 21, AND
• they are receiving full-time education at a school, college or university.

Child under 16 is NOT a dependent

A child under 16 CANNOT be considered a dependent child of the recipient if the child is:

• not a full-time student, AND
• receives weekly income from any source other than maintenance, of more than the permissible child earnings limit for a child under 16, OR
• receiving a payment under a LMP (1.1.L.10), OR
• receiving a social security pension or benefit.
  
  • Example: YA.

Exception: A child who has not reached school age is regarded as being a full-time student for the purposes of SSAct subsection 5(3).

Child 16 or over is NOT a dependent

A child aged 16 or over CANNOT be considered a dependent child of the recipient if:

• the recipient is their partner, OR
• they receive a payment under a LMP, OR
• they receive a social security pension or benefit.
  
  • Example: YA.

Permissible child earnings limits - child under 16 years of age

The permissible child earnings limit for a dependent child under 16 is set at $252.60 per week, effective from 1 January 2024.

Permissible child earnings limits - child from 16 years of age

The permissible child earnings limit for a dependent between 16 and 21 is set at $13,844.45 per year, effective from 1 January 2024. Income includes earnings from casual, part-time or full-time employment.

Residence requirements (1.1.R.210)

A child must ALSO meet the conditions in the following table, to be considered a dependent child of the recipient:

Exception: The residence requirements are slightly different for SpB.

Note: Exchange students CANNOT be considered to be the dependent child of their host family in Australia as the student would have a parent who has legal responsibility for them in their home country.

Dependent child & FTB child

FTB is paid to recipients who have an FTB child. In most cases a 'dependent child' is also an 'FTB child'. However there are some differences. Differences between FTB child and dependent child are explained in the FA Guide.

Temporary absences

If a dependent child leaves the recipient's place of residence temporarily, the child continues to be a dependent child of the person if:

• it is clear that the child normally lives with the recipient, AND
• there is a clear indication that the child will return to live with the recipient, AND
• the recipient has a continual involvement with the child and continues to exercise control over key decisions relating to the child.

Where a temporary absence occurs, the child can continue to be regarded as being a dependent child of the recipient if the recipient can DEMONSTRATE AN ONGOING INVOLVEMENT regarding 'a measure of oversight of the child with a view to its protection, preservation, or guidance and continue to some degree to control, check or direct the child's actions' (AAT decision Parks and Director - General of Social Security (1984) AATA 315). In demonstrating this ongoing involvement 'it is the existence of the right of control which is the dominant consideration, not the extent to which it is in fact exercised either from day-to-day or year-to-year' (AAT decision Leahy and Secretary, Department of Social Security (1988) AATA 247).

To determine whether the child remains the dependent child of the recipient, the individual circumstances of each particular situation still need to be fully considered. For example, where the recipient is separated through illness, including periods of residential rehabilitation, medical advice may be required to confirm whether the recipient is not so incapacitated that they are unable to make decisions regarding the child. While the length of the absence can be an important factor in making this determination it is not the overriding consideration.

Note: If the person or child is in hospital for an extended period it may still be possible for the child to be regarded as the dependent child of the person where the person continues to some degree to control, check or direct the child's actions. In each individual case, an assessment will need to be made as to whether the person meets the criteria of SSAct section 5(2) where the child is aged under 16 or SSAct section 5(4) where the child is aged 16 to 21.

Confirming a change of care

Any long term or permanent change to care arrangements should be investigated by the delegate to determine who has the care of the child for the purposes of income support. This may result in the previous carer losing eligibility for payment, or receiving a reduced rate of payment. Where a new (competing) claim is made for a payment in respect of a dependent child a delegate should defer granting the new claim, and seek confirmation of the change from the previous carer. If the change of care only affects the rate of payment, a delegate should defer changing the rate of payment, and seek confirmation of the change from the previous carer.

The previous carer should be contacted by phone within 24 hours if possible, otherwise a written request for confirmation should be sent. If the previous carer fails to respond to a written request for confirmation within 14 days, then it is considered that the change of care is confirmed. Where a recipient is in hardship then a decision can be made not to wait the 14 days if reasonable effort has been made to contact the previous carer via the phone.

The date of effect of a change of care should be the date the change of care occurred. If the date of the change of care is uncertain, the date of lodgement of the claim can generally be accepted as the date when care changed. If documentary evidence, such as a court order, is available to confirm the date of change of care this should be requested from the recipient.

If a claim is lodged for a child who has recently come into care a delegate should check the following:

• the records of each state to ensure that the natural parent and/or previous guardian of the child is not currently receiving a payment for the child, AND
• that the recipient is not currently being paid for the child in another state.

Disputed care of a dependent child

Situations arise where different recipients claim the same child as a dependent and the care of the child becomes disputed. This can occur generally and in cases of abduction. Refer to 1.1.P.414, for further information regarding eligibility for income support in these circumstances.

Children at risk of harm

Sometimes cases arise where the care arrangements for a child are not in the child's best interest.

Child is an inmate of a psychiatric institution (1.1.M.133)

A child who is an inmate of a psychiatric institution may still be a dependent child if:

• the institution is either maintained by the Australian Government, a state or a territory government, or mainly dependent on financial assistance from the Australian Government, a state or a territory government, AND
• the recipient is making a reasonable contribution towards the child's expenses, AND
• a determination is made to the effect that the child is a dependent child of the recipient.

Foster situations

The same rules regarding whether a child is a dependent child apply to foster children. Therefore foster children can be dependent children of their foster parents if they have the right to 'make decisions concerning the day-to-day care, welfare and development of the young person'. Usually this occurs with long term foster care placements, although it can also apply to short term foster care placements. In short term foster care placements the child is generally not considered to be a child of the foster parents if it is likely that the child will return to the natural parent's or guardian's care.

Where the child is not considered to be a dependent child of the foster carer the foster carer may still be receiving financial assistance from other sources to assist with expenses for the child. This money is generally not considered as income for social security purposes.

Expanded definition of dependent child - pension income test

For the purpose of the pension income test the definition of dependent child is expanded.

Dependent child - CA

A dependent child for CA (child) purposes is a child who satisfies the definition of dependent child as per the SSAct, disregarding subsection 5(3).

Qualification for the 'with dependent child' rate of payment where a person has at least 14% care of a child

Note: For the purposes of this section, a child must be under 16 years of age.

In some cases a recipient can qualify for the 'with child' rate of payment where they do not have a dependent child but do have 14% care of a child (equivalent to one weekend a fortnight). While this provides for the MBR of payment to a person as if they had a dependent child, in all other respects, the person should NOT be considered to have a dependent child. As it is otherwise more beneficial for a person to have a dependent child, the 'at least 14% care of a child' provision should only be considered where the person would not otherwise qualify for the with dependent child rate. This provision should therefore be considered following a determination that a child is not the person's dependent child due the amount of care and/or the circumstances in which the care is provided.

This provision extends only to the following payments:

• jobseeker payment, and
• YA (job seeker).
  • To qualify for the YA dependent child rate of payment where a person has 14% care of a child despite not having a dependent child: the carer cannot be undertaking full-time study or be an Australian Apprentice, and the carer must be assessed as being 'independent' and 'unaccommodated'.
  • Note: One means for qualifying as an independent young person is to have a 'dependent YA child'. However, having 14% care of a child will not always mean a person has a dependent YA child. A separate assessment should be made to determine firstly if the YA person is independent (3.2.5.10) before they can qualify for the dependent child rate.

To qualify for the with child rate of payment where they have at least 14% care of a child a person must have:

• legal responsibility (whether alone or jointly with another person) for the day-to-day care, welfare and development of a child, OR
• if the person does not have legal responsibility (whether alone or jointly with another person) for the day-to-day care, welfare and development of a child, they must have a family law order, registered parenting plan or parenting plan for them to qualify for this rate of payment.
  • This order/plan must outline that the person is someone the child is supposed to live with and the person must comply with the order/plan.

In order to qualify for the with child rate of payment despite not meeting SSAct subsection 5(2), the child must meet the dependent child criteria at SSAct subsection 5(3), sections 6 and 7 (these criteria are described above under the headings 'Child under 16 is NOT a dependent' and 'Residence requirements').

When making an assessment as to whether the person has at least 14% care of the child the delegate must be satisfied that:

• a person has 14% care of the child in the current instalment period (generally 14 days), or
• a person demonstrates a pattern of care which shows they have 14% care of the child over either a 14 or 28 day period. This period can be retrospective or prospective in nature, but should include at least part of the current instalment period. Where an assessment is made based on a period which is not the instalment period then the delegate must make a determination in writing stating that this other period should apply to the person.

If and/or when a person's level or pattern of care for a child subsequently changes, the person should inform Services Australia as is the case for any other change in their circumstances.

Note: It is preferable that the instalment period be used as this is the period in relation to which the person's entitlement is calculated and paid. Where a person qualifies on the basis of demonstrating a pattern of care over a longer assessment period (for example, 28 days), but the caring arrangements do not eventuate as expected, then that person could be liable for an overpayment for both fortnights. Similarly, once it has been determined that a person has at least 14% care of a child during an instalment or other period, the onus is on the income support recipient to advise if the level of care decreases to below 14% so as to avoid incurring a debt over a later period.

As a general rule, assessing the percentage of care is derived by working out number of nights a person cares for the child divided by the total number of days in the period. This means that in order to have at least 14% care the person must care for the child for at least one night for every week of the assessment period (either the instalment period or 14 or 28 days). However, in some cases a person may meet the 14% care benchmark by caring for a child for the equivalent of 4 hours of each day within the assessment period.