1.1.P.415 Principal carer - foster care

Summary

This topic outlines the criteria under which foster carers can be classified as principal carers (1.1.P.412).

In addition, this topic covers the following issues relating to qualification that are of particular relevance to foster carers:

  • legal responsibility for the child,
  • care of the child and the duration of care,
  • making a determination about qualification for payment,
  • shared care, and
  • risks of incorrect payment and fraud.

The following guidelines apply to BOTH single and partnered foster carers.

The guidelines apply to all forms of foster care, including:

  • formal foster care, and
    • Explanation: This is defined as care mediated by a state or territory welfare authority.
  • informal foster care.
    • Explanation: This occurs where a relative or friend assumes care of a child in a private arrangement.

Qualification (1.1.Q.10) criteria

In order for a foster carer on PP, NSA, YA job seeker or SpB to be the principal carer of a foster child, it is necessary for the foster child to be their dependent child (1.1.D.70).

The determination of whether a foster child is a dependent child is made on the same basis as the determination for children generally. Foster children must meet the requirements of SSAct section 5(2). A young person (1.1.Y.20) is a dependent child of an adult if:

  • the adult has legal responsibility (1.1.L.33), whether 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.

Where a foster carer is claiming PP, NSA, YA job seeker or SpB, and has the care of a dependent child aged under 16, and meets other relevant qualification and payability criteria, they will also be classified as the principal carer of that child.

Act reference: SSAct section 500 to section 500E Qualification (PP), section 5(2) Dependent child - under 16

Policy reference: SS Guide 1.1.P.340 PP child (PP), 3.5.1.10 Qualification Summary for PP, 1.1.P.412 Principal carer, 1.1.D.70 Dependent child, 1.1.Y.20 Youth allowance job seeker

Determining who has legal responsibility for a child

In determining who is the principal carer of a child, it should be established who has the legal responsibility for the child required by section 5(2)(a) of the dependent child definition.

Legal responsibility for a child in foster care usually lies with one of the following:

  • the natural or adoptive parents, OR
  • the minister or department head of the state/territory welfare department, or a delegated officer (as specified under the relevant start/territory welfare legislation), OR
  • a non-government foster care agency, OR
  • the foster carer.

In the ABSENCE of any court orders in respect of a child, a parent generally has legal responsibility for the child.

Where a court order EXISTS, the order may transfer some or all legal responsibility from the natural/adoptive parent, and place it with another party for a period of time. The identity of that party depends on the circumstances of the case and which state/territory legislation applies. Where a court order exists, verification of who has legal responsibility (and actual care - see discussion below) may be obtained by contacting the relevant welfare authority.

The circumstances relating to each case should be fully established, however commonly:

  • in informal, OR formal BUT voluntary care situations, no court order exists, and the natural/adoptive parent retains legal responsibility, and
  • in FORMAL care situations where the child has been removed from the parents by a welfare authority (perhaps involuntarily), the welfare authority or delegate has legal responsibility.

It is uncommon for the foster carer to have legal responsibility for the child.

Determining care arrangements of the dependent child

A further step in establishing whether a person is the principal carer is determining who has care of the child and the expected duration of care.

In determining the care arrangements for a foster child, many factors may be considered. Such factors can include, but are not confined to, the following:

  • who makes the major decisions regarding the child's care and welfare,
    • Example: Decisions relating to health, education, religion, etc.
  • who provides daily care requirements,
    • Example: Food, accommodation, clothing, education, health care, sport/leisure activities, hygiene, comfort, discipline, nurturing, moral guidance.
  • who bears the costs of daily care, and
  • the likely duration of the care arrangement.

In some cases it may be appropriate to seek the assistance of a social worker or ICSO in determining who has the care of a child.

Example: Where there is a dispute about who provides care.

Determining qualification for payment

The following table describes how to determine who is the principal carer under different circumstances.

If a foster carer… Then…
HAS BOTH:
  • legal responsibility for the child, AND
  • is providing daily care,
the foster carer would be the principal carer
Explanation: The child would satisfy the dependent child definition at 5(2)(a) in respect of the foster parent.
DOES NOT HAVE:
  • legal responsibility for the child, BUT
  • there is no dispute about the care arrangements, i.e. all relevant parties AGREE that the foster carer has 'whole or substantial care' (i.e. provides daily care for more than 50% of the time during the care cycle)

Example: For 5 days in every 7.

the foster carer would generally be the principal carer

Explanation: The child would generally be determined as meeting the dependent child definition at 5(2)(b) in respect of the foster carer.

DOES NOT HAVE
  • legal responsibility for the child, AND
  • there is a DISPUTE between the foster carer and aren't about who is the principal carer,

a determination must be made about which party is the principal carer, having regard to the duration of the foster carer placement. See the factors to consider explained in the next table.

Factors to consider where there is a dispute about the care arrangements

Where the foster carer DOES NOT HAVE legal responsibility for the child and THERE IS A DISPUTE between the foster carer and the natural/adoptive parent about who has the dependent child, a determination should be made about who is the principal carer according to the following guidelines.

Where the duration of care is expected at the outset to be… Then the principal carer should be…

less than or equal to 4 weeks,

the original carer (usually the natural/adoptive parent).

Explanation: The parent would generally be considered to meet the provisions of 5(2)(a).

longer than 4 weeks OR of an unknown duration AND NOT fully supported by legal documentation,

the original carer (parent) for up to 12 weeks while that carer seeks the return of the child and THEREAFTER, the person who has the actual daily care.

Explanation: The case should be reviewed after the first 4 weeks of the 12 week period. If the original carer (parent) has taken reasonable steps (e.g. taking out a recovery order) to have the child returned to their care, the child can be considered their dependent child for the remainder for the 12 week period.

If the review finds that the losing carer (parent) has failed to take reasonable steps to have the child returned to their care, the child may be considered to be a dependent child of the new carer (foster carer) from that point on (i.e. from the 5th week).

longer than 4 weeks OR of unknown duration AND IS fully supported by legal documentation,

the person providing the actual daily care (usually the foster carer).

Explanation: The person would be deemed to be providing the 'whole or substantial care' required by 5(2)(b), and would therefore be the principal carer.

Shared care in foster care situations

A feature of many contemporary foster care arrangements is the maintenance of contact between the natural/adoptive parents and the child during the foster care placement, with a view to eventual family reunification. Progress towards reunification is often achieved by a process; whereby the time a child spends with the natural parent increase gradually over time, until the point where the child rejoins the natural family permanently. There may be circumstances where it is considered that the natural parent and foster parent are sharing care in this situation.

However, the ONLY circumstances under which 2 people can be considered to share care for principal carer determination processes is if they simultaneously meet the dependent child definition. Such a situation is VERY UNCOMMON in the foster care context.

The ONLY circumstance under which a parent and a foster carer can simultaneously qualify as a principal carer (but for the provisions of section 5(18)), is in the uncommon situation where they both satisfy the requirements of section 5(2)(a). In order to simultaneously satisfy 5(2)(a), the natural parent and foster parent would have to have joint legal responsibility and joint care. Such an arrangement would be highly unusual. In situations where this arrangement exists, the provisions of section 5(19) should be invoked as normal, and a decision made regarding which party is determined to be the principal carer.

It is NOT legislatively possible for a foster carer to meet the requirements under 5(2)(b), and to be the principal carer, if, at the same time, someone else satisfies the provisions of 5(2)(a).

Example: A situation where a parent had legal responsibility and some care (and thus meets 5(2)(a)) and a foster carer had no legal responsibility but has substantial care (and meets 5(2)(b)).

In such a case, the person who meets 5(2)(a) (usually the parent) would be considered to be the principal carer.

It is also NOT legislatively possible for a foster carer and parent to simultaneously meet the requirements of 5(2)(b).

Example: A situation where legal responsibility lay with the welfare authority, and actual care was provided partly by the parent and partly by the foster carer.

The provision at 5(2)(b) requires that the person claiming to be principal carer have 'whole or substantial care'. By definition, it is not possible for 2 separate carers to simultaneously have 'substantial' care. At the very least, 'substantial' care in 5(2)(b) has to be more than 50% care, because of the context in which the term is used (i.e. it is used in contrast to 'whole' care). In this scenario, neither person would be considered to have a dependent/PP child, and therefore neither would qualify for payment as a principal carer.

Act reference: SSAct section 5(2) to 5(8A) Dependent child…, section 5(18) Principal carer-a child can only have one principal carer, section 500D PP child, section 542FA Exemptions from the activity test - Disabled children or other family circumstances exemption (YA), section 602C(3) Relief from activity test - people with disabled children and other circumstances (NSA), section 731DB(3) Relief from activity test-people with disabled children and other circumstances (SpB), section 731GA Relief from activity test-certain principal carers and people with partial capacity to work (SpB), section 1067G-B3 Maximum basic rate - Person who is independent (YA), section 1067G-C1 Qualification for PhA (YA), section 1068-B4 Maximum basic rate (NSA/SA/WA single principal carers), section 1068-D2B NSA recipients who have a partial capacity to work or are principal carers (PhA), section 1061ZA(2A) General qualification rules-PCC (YA single principal carer), section 1061ZA(2B) General qualification rules-PCC (NSA single principal carer), section 1061ZM(1BA) Qualification for HCC: employment‑affected person (NSA/YA single principal carer)

Policy reference: SS Guide 1.1.P.340 PP child (PP), 1.1.D.70 Dependent child, 3.5.1.50 Child-related Qualification for PP - Shared Care, 3.2.1.10 Qualification for NSA, 3.2.3.10 Qualification for YA, 3.7.1.10 Qualification for SpB, 3.2.9 Mutual Obligation Requirements for NSA/YA Job Seekers - Suitable Activities, 3.7 Special Payments - Qualification & Payability, 3.8 Supplementary Benefits - Qualification & Payability, 3.9 Concession Cards - Qualification Provisions

Risks of incorrect payment & fraud

The main risk of incorrect payment associated with foster caring is in determining whether the foster carer has a dependent and is the principal carer.

Key risk areas are outlined in the following table:

Type of Risk Explanation/Action

Change of circumstances

Foster carers may experience a change in circumstances that makes them ineligible for payment:

Example: Lose care of a foster child.

Foster carers are subject to the same stringent review processes as all other recipients. In processing foster carers review forms, particular attention should be paid to the dependent child details.

Dual payment

A foster carer and parent may claim simultaneously for the same dependent child. Rigor should be employed in determining whether a person claiming PP, NSA, YA job seeker or SpB has actual care of a dependent child. In addition, it is important that the claimant's and child's identity is clearly established to improve the success of matching routines designed to address the risk of incorrect payment.

Contrived arrangements

Contrived fostering arrangements are those that are designed to enable someone who would not otherwise be eligible, to qualify for payment.

Example: A person with several children claims to have placed one child in the care of a relative, thus enabling the relative to qualify for payment.

Claims should be thoroughly investigated where staff suspect an arrangement of this type.

Child at risk of harm

Circumstances under which a child may be at risk of harm include scenarios where a claimant indicates that the child in respect of whom they are claiming is not a relative, and the claimant has no documentation to support that the child is legally in their care. In this situation apply the 'child at risk of harm' guidelines.

Policy reference: FA Guide 2.1.1.100 Child at risk of harm

Last reviewed: 13 August 2018