Family Assistance Law

In response to a variety of compliance-oriented measures directed at the family day care sector, Family Day Care Australia has undertaken sustained consultation with the government and the family day care sector to ensure that these changes represent reasonable, proportionate and appropriate compliance mechanisms.

February 2017

Changes to Special Child Care Benefit, Grandparent Child Care Benefit and care for secondary school children

On 27 February 2017, the Minister for Education and Training the Hon. Simon Birmingham introduced three legislative instruments to:

  • Restrict payment of child care fee assistance if the child is aged 14 years or older and is under 18 or attends secondary school, unless an exemption applies; and,
  • Set a maximum hourly rate that the Commonwealth pays for Grandparent Child Care Benefit (GCCB) and Special Child Care Benefit (SCCB).

These amendments were made through the following Determinations:

Prior to the introduction of the legislative instruments, FDCA consulted in confidence with the Department of Education and Training on several occasions. While FDCA was, and remains supportive of the proposed instruments ‘in principle’, we identified potential changes to the specified exemption thresholds to minimise the impact on legitimate operators and advocated for broader consultation with the sector.

FDCA also conducted a restricted confidential consultation with a reference group of family day care stakeholders on 31 January 2017to gauge the potential impact of the legislative instruments on children and families. FDCA provided some preliminary guidance to the Department regarding a number of exemption amendments that would reflect a fairer and more proportionate regulatory response, and advocated for further consultation to accurately assess the impact of the proposed measures.

FDCA also wrote to Minister the Hon. Simon Birmingham on March 8 2017 to express our concerns regarding the legislative instruments, and proposed that the Government consider the following recommendations:

  • Amend the commencement date of all legislative instruments to 3 April 2017;
  • Remove reference to “attends secondary school” in Child Care Benefit (Children in respect of whom no-one is eligible) Amendment Determination 2017;
  • Add “the child is at risk of abuse or neglect” and “the child resides in as area which is designated inner or outer regional” as exemptions under section 9 of the Child Care Benefit (Children in respect of whom no-one is eligible) Amendment Determination 2017;
  • Reduce the work requirement exemption under section 9 of the Child Care Benefit (Children in respect of whom no-one is eligible) Amendment Determination 2017 from ‘at least 5 hours’ to ‘at least 3 hours’; and
  • Increase the GCCB/SCCB cap under the Child Care Benefit (Session of Care) Amendment Determination 2017 to cater for non-standard hours care provision and/or ensure the application process for exemption is streamlined.

While some consideration of our feedback is evident in the legislative instruments that have been introduced (particularly our suggested exemption regarding a reduction in work hour requirements on a care day), FDCA remains concerned that the Determinations will unduly impact upon the legitimate care arrangements of a relatively small, yet significant, percentage of children and families, some of which may be either the most vulnerable or the most in need of the unique and flexible service provision which is offered by the family day care sector.

October 2016

Changes to child care payments frameworks 

On 10 October 2016, the Minister for Education and Training the Hon. Simon Birmingham introduced changes to the child care payments legislative framework to be made through the following Determinations:

In summary, the changes included:

  • Ensuring that child care fee assistance is not payable for:
    • care where there is not a genuine liability
    • Family day care provided in the child’s own home, or where the parent is present
    • Family day care or In-home Care provided by a parent or sibling
    • Care that is predominantly transport.
  • A minimum benchmark for existing notifiable events obligations for all approved early childhood education and care (ECEC) services. Services must notify the department where they become aware that a key personnel, staff member, family day care educator or in-home care educator:
    • is charged with or found guilty of a serious indictable offence
    • becomes bankrupt
    • has their working with children check refused, amended or cancelled.
  • Additional suitability criteria that will apply to all ECEC service types and their key personnel.

FDCA and State and Territory Family Day Care Associations consulted with the Department in the lead up to its implementation and offered in principle support for the amendments, as they are designed to stop payments being made to operators that are claiming subsidies for care that is outside the original intent of family day care or not taking place at all.

October 2015

Child swapping Determination 2015

Following the Unite for Rights campaign, the then Minister for Social Services, the Hon. Scott Morrison MP, revoked the old rule and reissued a new legislative instrument, the Child Care Benefit (Children in respect of whom no-one is eligible) Determination 2015. The instrument came into effect on 12 October 2015, and restricts family day care educators access to family day care for their own children on a day that they are providing care. The new rule acknowledged many of FDCA’s concerns with the original rule and incorporated a number of exemptions to ensure access for the most vulnerable families, including unrestricted access for children with disabilities and those that live in remote areas with limited early childhood options.

In the lead up to the Determination coming into effect, FDCA met with Senator Xenophon who in turn negotiated with the Government to ensure a commitment to a review of the new rule within twelve months and extend the scope of the children with additional needs specified circumstance. FDCA also sustained an ongoing dialogue with the Department of Social Services, our Service Reference Group and our members to gauge the extent of the impact of the draft legislation on the sector. Through negotiations with the Government, FDCA:

  • Secured a commitment to review the new rule which will assess the impacts upon the sector and the effectiveness of eradicating unscrupulous operators; and
  • Ensured that children with additional needs that have a formal diagnosis, but do not access the Inclusion Support Subsidy, are able to access care.

December 2014

Unite for Rights

In late December 2014, in response to unscrupulous and fraudulent misuse of Child Care Benefit (CCB), the former Assistant Minister for Education, the Hon. Sussan Ley MP introduced a legislative instrument that placed a ‘blanket ban’ on family day care educators accessing family day care for their own children, the Child Care Benefit (Eligibility of Child Care Services for Approval and Continued Approval) Amendment Determination 2014 (No. 1).

In response, FDCA with the support of the sector, our membership and numerous federal politicians, launched the ‘Unite for Rights’ campaign and wrote to Minister Ley to urge that the government withdraw the determination or at the very least extend the date in which family day care services and educators must comply with the regulation (allowing for adequate timeframes for alternative education and care arrangements to be made and for parliamentary scrutiny of this regulation). In January 2015, FDCA and the FDC peaks sent a letter to the Senate Regulations and Ordinances Committee and the Parliamentary Joint Committee on Human Rights regarding the initial Determination and its effect on the sector.  The actions undertaken by FDCA, the state peak bodies and our members during the campaign resulted in a successful revocation of the original rule.