Commonwealth: Social Security (Home Child Care and Partner Allowances) Legislation Amendment Act 1994 (Cth)

Social Security (Home Child Care and Partner Allowances) Legislation Amendment Act 1994 No. 55 of 1994 TABLE OF PROVISIONS PART 1—PRELIMINARY Section 1. Short title etc. 2. Commencement PART 2—HOME CHILD CARE ALLOWANCE 3. Insertion of new Part: PART 2.18—HOME CHILD CARE ALLOWANCE Division 1—Home child care allowance child status 901. Home child care allowance child 902. Home child care allowance child—prescribed student child not included 903. Home child care allowance child—child over 16 TABLE OF PROVISIONS—continued Section 904. Home child care allowance child—residence requirements 905. Home child care allowance child—child absent from Australia for more than 13 weeks Division 2—Qualification for and payability of home child care allowance Subdivision A—Qualification 906. Qualification for home child care allowance 907. Qualification for home child care allowance ceases after 13 week absence of recipient from Australia Subdivision B—Payability 908. Home child care allowance not payable in some circumstances 909. Home child care allowance not generally payable before claim 910. Provisional commencement day 911. Backdating—death of former recipient 912. Home child care allowance not payable to more than one person for the same child 913. Provision of person's tax file number 914. Provision of partner's tax file number Division 3—Claim for home child care allowance 915. Need for a claim 916. Form of claim 917. Lodgment of claim 918. Claimant must be inhabitant of Australia and in Australia 919. Claim may be withdrawn 920. Secretary may require claimant to give statement of claimant's tax file number 921. Secretary may require claimant to give statement of partner's tax file number Division 4—Determination of claim 922. Secretary to determine claim 923. Grant of claim 924. Date of effect of determination Division 5—Rate of home child care allowance 925. Purpose of Division 926. Interpretation 927. Ordinary income free area 928. Maximum rate of home child care allowance 929. How to calculate a person's annual rate of home child care allowance Division 6—Payment of home child care allowance 930. Commencement of home child care allowance 931. Payment by instalments 932. Effect on instalments of backdating claim 933. Calculation of amount of instalment 934. Instalments to be paid to person or nominee 935. Payment into bank account etc. 936. Where home child care allowance payday would fall on public holiday etc. TABLE OF PROVISIONS—continued Section 937. Payment of home child care allowance after death 938. Secretary may make declaration where more than one person qualified for home child care allowance for the same child Division 7—Protection of home child care allowance 939. Home child care allowance to be absolutely inalienable 940. Effect of garnishee or attachment order Division 8—Recipient obligations 941. Secretary may require recipient to give statement of recipient's tax file number 942. Secretary may require recipient to give statement of partner's tax file number 943. Secretary may require notice of the happening of an event or a change in circumstances 944. Secretary may require recipient to give particular information relevant to payment of home child care allowance Division 9—Continuation, variation and termination Subdivision A—General 945. Continuing effect of determination Subdivision B—Automatic termination 946. Automatic termination—recipient complying with section 943 notification obligations 947. Automatic termination—recipient not complying with section 943 notification obligations 948. Changes to payments by computer following automatic termination Subdivision C—Automatic rate reduction 949. Automatic rate reduction—recipient not complying with section 943 notification obligations 950. Changes to payments by computer following automatic rate reduction Subdivision D—Determinations 951. Rate increase determination 951A. Rate reduction determination 951B. Cancellation or suspension determination 951C. Cancellation or suspension for failure to comply with section 944, 1304 or 1305 notice 951D. Changes to payments by computer 951E. Resumption of payment after cancellation or suspension Subdivision E—Date of effect of determinations 951F. Date of effect of favourable determination 951G. Date of effect of adverse determination Division 10—Bereavement Subdivision A—Death of home child care allowance child 951H. Continuation of qualification for home child care allowance for 4 weeks where recipient's only home child care allowance child dies 951I. Continued payment of home child care allowance TABLE OF PROVISIONS—continued Section Subdivision B—Death of recipient 951J. Death of recipient of home child care allowance during bereavement period 951K. Death of recipient of home child care allowance 4. Consequential amendments PART 3—PARTNER ALLOWANCE 5. Insertion of new Part: PART 2.15A—PARTNER ALLOWANCE Division 1—Qualification for and payability of partner allowance Subdivision A—Qualification for partner allowance 771HA. Qualification for partner allowance 771HB. Unemployment due to industrial action Subdivision B—Payability of partner allowance 771HC. Partner allowance not payable in certain situations 771HD. Provision of person's tax file number 771HE. Provision of partner's tax file number 771HF. Assets test—allowance not payable if assets value limit exceeded 771HG. Multiple entitlement exclusion 771HH. Educational schemes exclusion 771HI. Multiple entitlement exclusion 771HJ. Educational schemes exclusion 771HK. Commonwealth funded employment program exclusion 771HL. Payments under LEAP program 771HM. Commencement of partner allowance 771HN. Provisional commencement day 771HO. Removal from allowance for failure to comply with notification requirements Division 2—Claim for partner allowance 771IA. Need for a claim 771IB. Form of claim 771IC. Lodgment of claim 771ID. Claimant must be Australian resident and in Australia 771IE. Claim may be withdrawn 771IF. Secretary may require claimant to give statement of claimant's tax file number 771IG. Secretary may require claimant to give statement of partner's tax file number Division 3—Determination of claim 771JA. Secretary to determine claim 771JB. Grant of claim 771JC. Date of effect of determination Division 4—Rate of partner allowance 771KA. Rate of partner allowance if partner receiving job search allowance or newstart allowance TABLE OF PROVISIONS—continued Section 771KB. Rate of partner allowance if partner receiving sickness allowance 771KC. Limitation on rate—loss of salary, wages or income by partner 771KD. Limitation on rate—partner transferring from social security pension 771KE. Rate of partner allowance if partner receiving special benefit Division 5—Payment of partner allowance 771KF. Commencement of partner allowance 771KG. Instalments 771KH. Instalments for period less than a fortnight 771KI. Rounding off instalment 771KJ. Instalments to be paid to person or nominee 771KK. Payment into bank account etc. 771KL. Where allowance payday would fall on public holiday etc. 771KM. Payment of allowance after death Division 6—Protection of partner allowance 771LA. Partner allowance to be absolutely inalienable 771LB. Effect of garnishee or attachment order Division 7—Recipient obligations 771MA. Secretary may require recipient to give statement of recipient's tax file number 771MB. Secretary may require recipient to give statement of partner's tax file number 771MC. Secretary may require notice of the happening of an event or a change in circumstances 771MD. Secretary may require recipient to give particular information relevant to payment of partner allowance Division 8—Continuation, variation and termination Subdivision A—General 771NA. Continuing effect of determination Subdivision B—Automatic termination 771NB. Automatic termination—transfer to new payment type 771NC. Automatic termination—transfer of partner to new payment type 771ND. Automatic termination—recipient complying with section 771MC notification obligations 771NE. Automatic termination—recipient not complying with section 771MC notification obligations 771NF. Automatic termination—failure to provide section 771MD statement 771NG. Changes to payments by computer following automatic termination Subdivision C—Automatic rate reduction 771NH. Automatic rate reduction—partner starting to receive benefit 771NI. Automatic rate reduction—recipient not complying with section 771MC notification obligations 771NJ. Automatic rate reduction—failure to inform Department of payment for remunerative work where earnings credit account balance available 771NK. Changes to payments by computer following automatic reduction TABLE OF PROVISIONS—continued Section Subdivision D—Determinations 771NL. Rate increase determination 771NM. Rate reduction determination 771NN. Cancellation or suspension determination 771NO. Cancellation or suspension for failure to comply with section 771MD, 1304 or 1305 notice 771NP. Changes to payments by computer 771NQ. Resumption of payment after cancellation or suspension Subdivision E—Date of effect of determinations 771NR. Date of effect of favourable determination 771NS. Date of effect of adverse determination Division 9—Bereavement payments Subdivision A—Surviving partner and deceased partner defined 771NT. Surviving partner and deceased partner Subdivision B—Person to continue to receive partner allowance where person's partner dies 771NU. Continuation of partner allowance for bereavement period Subdivision C—Bereavement payments for person receiving partner allowance following death of the person's partner 771NV. Qualification for payments under this Subdivision 771NW. Continued payment of deceased partner's benefit 771NX. Lump sum payable in some circumstances 771NY. Effect of death of surviving partner 771NZ. Matters affecting payments under this Subdivision 6. Consequential amendments SCHEDULE 1 CONSEQUENTIAL AMENDMENTS RELATING TO HOME CHILD CARE ALLOWANCE PART 1—AMENDMENTS OF THE SOCIAL SECURITY ACT 1991 PART 2—AMENDMENT OF THE DATA-MATCHING PROGRAM (ASSISTANCE AND TAX) ACT 1990 SCHEDULE 2 CONSEQUENTIAL AMENDMENTS RELATING TO PARTNER ALLOWANCE PART 1—AMENDMENTS OF THE SOCIAL SECURITY ACT 1991 PART 2—AMENDMENT OF OTHER ACT Data-matching Program (Assistance and Tax) Act 1990 Social Security (Home Child Care and Partner Allowances) Legislation Amendment Act 1994 No. 55 of 1994 An Act to amend the Social Security Act 1991, and for related purposes [Assented to 7 April 1994] The Parliament of Australia enacts: PART 1—PRELIMINARY Short title etc. 1.(1) This Act may be cited as the Social Security (Home Child Care and Partner Allowances) Legislation Amendment Act 1994. (2) In this Act, "Principal Act" means the Social Security Act 19911. Commencement 2.(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent. (2) Part 2 commences on 29 September 1994. (3) Part 3 commences on 20 September 1994. PART 2—HOME CHILD CARE ALLOWANCE Insertion of new Part 3. After Part 2.17 of the Principal Act the following Part is inserted: "PART 2.18—HOME CHILD CARE ALLOWANCE "Division 1—Home child care allowance child status Home child care allowance child "901. Subject to sections 902 to 905, a home child care allowance child is a dependent child of a member of a couple. Note: For 'dependent child' see subsections 5(2) to (9). Home child care allowance child—prescribed student child not included "902.(1) A dependent child cannot be a home child care allowance child if the child is a prescribed student child. "(2) For the purposes of subsection (1), a young person who is qualified to receive payments under the Assistance for Isolated Children Scheme is not a prescribed student child. Note: For 'prescribed student child' see subsection 5(11). Home child care allowance child—child over 16 "903.(1) Subject to subsection (2), a dependent child who has turned 16 cannot be a home child care allowance child. "(2) A dependent child who has turned 16 and is undertaking secondary studies may be a home child care allowance child until: (a) the end of the calendar year in which the child turns 18; or (b) the child ceases secondary studies; whichever happens first. Home child care allowance child—residence requirements "904. A dependent child cannot be a home child care allowance child unless: (a) the child is an inhabitant of Australia; or (b) the child is a dependent child of an inhabitant of Australia and is living with that inhabitant. Note: For 'inhabitant of Australia' see subsection 23(1). Home child care allowance child—child absent from Australia for more than 13 weeks "905.(1) If a dependent child: (a) either: (i) leaves Australia; or (ii) is born outside Australia; and (b) continues to be absent from Australia for more than 13 weeks; the child cannot be a home child care allowance child at any time after the 13 weeks while the child remains absent from Australia. "(2) If: (a) a dependent child is not a home child care allowance child because of subsection (1) or a previous application of this subsection; and (b) the child comes to Australia; and (c) the child leaves Australia less than 13 weeks later; the child cannot be a home child care allowance child when the child leaves Australia as mentioned in paragraph (c). "Division 2—Qualification for and payability of home child care allowance "Subdivision A—Qualification Qualification for home child care allowance "906. A person is qualified for home child care allowance if the person: (a) is a member of a couple; and (b) has a home child care allowance child; and (c) is an inhabitant of Australia; and (d) is in Australia. Note: For 'inhabitant of Australia' see subsection 23(1). Qualification for home child care allowance ceases after 13 week absence of recipient from Australia "907.(1) Subject to subsection (2), for the purposes of paragraph 906(d), a person is taken to be in Australia if the person is temporarily absent from Australia for a period of 13 weeks or less. "(2) If: (a) a person who has been absent from Australia for a period of more than 13 weeks returns to Australia; and (b) the person leaves Australia again within 13 weeks after returning to Australia; for the purposes of subsection (1), the person is not to be taken to be in Australia during the subsequent period of absence. "Subdivision B—Payability Home child care allowance not payable in some circumstances "908. Even though a person is qualified for home child care allowance, the allowance may not be payable to the person because: (a) the allowance has not commenced to be payable (see sections 909 and 930); or (b) the person has not provided a tax file number for the person (see section 913) or the person's partner (see section 914); or (c) another person is receiving home child care allowance for the same child (see subsection 912(1)); or (d) the person's partner is receiving home child care allowance (see subsection 912(2)); or (e) the person's home child care allowance rate would be nil; or (f) the person is in gaol (see Part 3.13). Home child care allowance generally not payable before claim "909. Subject to section 911, home child care allowance is not payable to a person before the person's provisional commencement day (identified under section 910). Provisional commencement day General rule "910.(1) Subject to subsections (2) to (5), a person's provisional commencement day is the day on which the person claims home child care allowance. Initial incorrect or inappropriate claim followed by claim for home child care allowance "(2) If: (a) a person makes a claim (the 'initial claim') for: (i) another payment under this Act; or (ii) a pension, allowance, benefit or other payment under another Act, or under a program administered by the Commonwealth, that is similar in character to a home child care allowance; and (b) on the day on which the person makes the initial claim, the person is qualified for home child care allowance; and (c) the person subsequently makes a claim for home child care allowance; and (d) the Secretary is satisfied that it is reasonable for this subsection to apply to the person; the person's provisional commencement day is the day on which the person made the initial claim. Early claim "(3) If: (a) a person lodges a claim for home child care allowance; and (b) the person is not, on the day on which the claim is lodged, qualified for home child care allowance; and (c) the person becomes qualified for home child care allowance during the period of 13 weeks that starts immediately after that day; the person's provisional commencement day is the first day on which the person is qualified for home child care allowance. Backdating—claim lodged on or after 29 September 1994 and on or before 31 December 1994 "(4) If: (a) a person lodges a claim for home child care allowance on a day (the 'claim day') in the period commencing on 29 September 1994 and ending on 31 December 1994 (the 'claim period'); and (b) on a day in the claim period that is before the claim day the person is qualified for home child care allowance; the person's provisional commencement day is the first day in the claim period on which the person is qualified for home child care allowance. Backdating—birth of child "(5) If a person lodges a claim for home child care allowance within 13 weeks of the birth of a dependent child, the person's provisional commencement day is the day on which the dependent child is born. Backdating—death of former recipient "911. If: (a) a person who is receiving home child care allowance in relation to a child dies; and (b) another person makes a claim for home child care allowance in relation to the child within 13 weeks after the death; home child care allowance may become payable to the other person before that person's provisional commencement day but not before the day of the person's death. Home child care allowance not payable to more than one person for the same child "912.(1) If: (a) more than one person qualifies for home child care allowance in relation to the same child; and (b) the Secretary has not made a declaration under subsection 938(1) in respect of home child care allowance in relation to the child; and (c) one of the persons is receiving home child care allowance for the child; home child care allowance is not payable to any other person in relation to that child. "(2) If: (a) both members of a couple are qualified for home child care allowance; and (b) the Secretary has not made a declaration under subsection 938(1) in respect of the home child care allowance; and (c) one of the members of the couple is receiving home child care allowance; home child care allowance is not payable to the other member of the couple. Note: Subsection 938(1) allows the Secretary to make a declaration that more than one person can share home child care allowance. Provision of person's tax file number "913.(1) Home child care allowance is not payable to a person if: (a) the person is required under section 920 or 941 to give the Secretary a written statement of the person's tax file number; and (b) at the end of the period of 28 days after the requirement is made, the person has neither: (i) given the Secretary a written statement of the person's tax file number; nor (ii) given the Secretary a declaration by the person in a form approved by the Secretary and satisfied either subsection (2) or (3). "(2) The person satisfies this subsection if: (a) the person's declaration states that the person: (i) has a tax file number but does not know what it is; and (ii) has asked the Commissioner of Taxation to inform the person of the person's tax file number; and (b) the person has given the Secretary a document by the person that authorises the Commissioner of Taxation to tell the Secretary: (i) whether the person has a tax file number; and (ii) if the person has a tax file number—the tax file number; and (c) the Commissioner of Taxation has not told the Secretary that the person has no tax file number. "(3) The person satisfies this subsection if: (a) the person's declaration states that an application by the person for a tax file number is pending; and (b) the person has given the Secretary a document by the person that authorises the Commissioner of Taxation to tell the Secretary: (i) if a tax file number is issued to the person—the tax file number; or (ii) if the application is refused—that the application has been refused; or (iii) if the application is withdrawn—that the application has been withdrawn; and (c) the Commissioner of Taxation has not told the Secretary that an application by the person for a tax file number has been refused; and (d) the application for a tax file number has not been withdrawn. Provision of partner's tax file number "914.(1) Subject to subsection (4), home child care allowance is not payable to a person if: (a) the person is required under section 921 or 942 to give the Secretary a written statement of the tax file number of the person's partner; and (b) at the end of the period of 28 days after the requirement is made the person has neither: (i) given the Secretary a written statement of the partner's tax file number; nor (ii) given the Secretary a declaration by the partner in a form approved by the Secretary and satisfied either subsection (2) or (3). "(2) The person satisfies this subsection if: (a) the partner's declaration states that the partner: (i) has a tax file number but does not know what it is; and (ii) has asked the Commissioner of Taxation to inform the partner of the partner's tax file number; and (b) the person has given the Secretary a document by the partner that authorises the Commissioner of Taxation to tell the Secretary: (i) whether the partner has a tax file number; and (ii) if the partner has a tax file number—the tax file number; and (c) the Commissioner of Taxation has not told the Secretary that the partner has no tax file number. "(3) The person satisfies this subsection if: (a) the partner's declaration states that an application by the partner for a tax file number is pending; and (b) the person has given the Secretary a document by the partner that authorises the Commissioner of Taxation to tell the Secretary: (i) if a tax file number is issued to the partner—the tax file number; or (ii) if the application is refused—that the application has been refused; or (iii) if the application is withdrawn—that the application has been withdrawn; and (c) the Commissioner of Taxation has not told the Secretary that an application by the partner for a tax file number has been refused; and (d) the application for a tax file number has not been withdrawn. "(4) The Secretary may waive the requirement for a statement of the partner's tax file number if the Secretary is satisfied that: (a) the person does not know the partner's tax file number; and (b) the person can obtain none of the following from the partner: (i) the partner's tax file number; (ii) a statement of the partner's tax file number; (iii) a declaration by the partner under subparagraph (1)(b)(ii). "Division 3—Claim for home child care allowance Need for a claim "915.(1) A person who wants to be granted home child care allowance must make a proper claim for that payment. Note: For 'proper claim' see section 916 (form), section 917 (manner of lodgment) and section 918 (inhabitant of Australia). "(2) For the purposes of subsection (1), if: (a) a claim for home child care allowance is made by or on behalf of a person; and (b) at the time the claim is made, the claim cannot be granted because the person is not qualified for home child care allowance; the claim is, subject to subsection 910(3), taken not to have been made. Form of claim "916. To be a proper claim, a claim must be made in writing and must be in accordance with a form approved by the Secretary. Lodgment of claim "917.(1) To be a proper claim, a claim must be lodged: (a) at an office of the Department; or (b) at a place approved for the purpose by the Secretary; or (c) with a person approved for the purpose by the Secretary. "(2) A place or person approved under subsection (1) must be a place or person in Australia. Claimant must be an inhabitant of Australia and in Australia "918. A claim by a person is not a proper claim unless the person is an inhabitant of Australia and in Australia on the day on which the claim is lodged. Note: For 'inhabitant of Australia' see subsection 23(1). Claim may be withdrawn "919.(1) A claimant for home child care allowance or a person on behalf of a claimant may withdraw a claim that has not been determined. "(2) A claim that is withdrawn is taken to have not been made. "(3) A withdrawal may be made orally or in writing. Secretary may require claimant to give statement of claimant's tax file number "920. The Secretary may require a claimant for home child care allowance to give the Secretary a written statement of the person's tax file number. Note 1: For the consequences of a failure to comply with the requirement see section 913. Note 2: In some cases the requirement can be satisfied by giving the Secretary a declaration by the person about the person's tax file number and an authority by the person to the Commissioner of Taxation to give the Secretary certain information about the person's tax file number (see subsections 913(2) and (3)). Secretary may require claimant to give statement of partner's tax file number "921. If the partner of a claimant for home child care allowance is in Australia, the Secretary may require the claimant to give the Secretary a written statement of the tax file number of the claimant's partner. Note 1: For the consequences of a failure to comply with the requirement see section 914. Note 2: In some cases the requirement can be satisfied by giving the Secretary a declaration by the partner about the partner's tax file number and an authority by the partner to the Commissioner of Taxation to give the Secretary certain information about the partner's tax file number (see subsections 914(2) and (3)). Note 3: The Secretary may waive the requirement in some cases (see subsection 914(4)). "Division 4—Determination of claim Secretary to determine claim "922. The Secretary must, in accordance with this Act, determine a claim for home child care allowance. Grant of claim "923. The Secretary is to determine that the claim is to be granted if the Secretary is satisfied that: (a) the person is qualified for home child care allowance; and (b) the allowance is payable. Date of effect of determination "924.(1) Subject to subsections (2) to (7), a determination under section 923 takes effect on the day on which the determination is made or on such later day or earlier day as is specified in the determination. Notified decision—review sought within 13 weeks "(2) If: (a) a decision (the 'previous decision') is made rejecting a person's claim for home child care allowance; and (b) a notice is given to the person advising the person of the making of the previous decision; and (c) the person applies to the Secretary under section 1240, within 13 weeks after the notice is given, for review of the previous decision; and (d) a determination granting the claim is made as a result of the application for review; the determination takes effect on the day on which the previous decision took effect. Notified decision—review sought after 13 weeks "(3) If: (a) a decision (the 'previous decision') is made rejecting the person's claim for home child care allowance; and (b) a notice is given to the person advising the person of the making of the previous decision; and (c) the person applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the previous decision; and (d) a determination granting the claim is made as a result of the application for review; the determination takes effect on the day on which the person sought the review. Decision not notified "(4) If: (a) a decision (the 'previous decision') is made rejecting a person's claim for home child care allowance; and (b) no notice is given to the person advising the person of the making of the previous decision; and (c) the person applies to the Secretary under section 1240 for review of the previous decision; and (d) a determination granting the claim is made as a result of the application for review; the determination takes effect on the day on which the previous decision took effect. "Division 5—Rate of home child care allowance Purpose of Division "925. The purpose of this Division is to work out the annual rate at which home child care allowance is payable to a person. Interpretation "926. For the purposes of this Division, 'ordinary income' includes: (a) a payment by way of a social security pension, social security benefit or rehabilitation allowance other than that part of the payment that is for rent assistance, pharmaceutical allowance or remote area allowance; and (b) a payment received by a trainee in full-time training under a program included in the programs known as the Labour Force Programs, to the extent that the payment includes one or more of the following amounts: (i) an amount calculated by a reference to a rate of job search or newstart allowance; (ii) an amount known as the training component; (iii) an amount by way of a living away from home allowance; and (c) a payment received by the person under the scheme known as the New Enterprise Incentive Scheme; and (d) a payment received by the person under a scheme known as the Aboriginal Employment Incentive Scheme; and (e) a payment by way of a service pension. Note: For general definition of 'ordinary income' see subsection 8(1). Ordinary income free area "927.(1) A person's 'ordinary income free area' is the amount of ordinary income that the person can have without a deduction being made from the person's home child care allowance payment. "(2) The ordinary income free area is $282.00 a year. Maximum rate of home child care allowance "928. The maximum rate of home child care allowance is $1,560.00 per annum. How to calculate a person's annual rate of home child care allowance "929.(1) To work out the person's annual rate of home child care allowance, first, work out the person's ordinary income excess using the following Method statement: Method statement Step 1. Work out the amount of the person's ordinary income on a yearly basis. Step 2. Work out whether the person's ordinary income exceeds the ordinary income free area. Step 3. If the person's ordinary income exceeds the ordinary income free area, the person's ordinary income excess is the person's ordinary income less the ordinary income free area. Step 4. If the person's ordinary income does not exceed the ordinary income free area, the person's ordinary income excess is nil. "(2) If the person's ordinary income excess is nil, the person's annual rate of home child care allowance is equal to the maximum rate of the allowance. Note: For the maximum rate of home child care allowance see section 928. "(3) If the person's ordinary income exceeds the ordinary income free area, the person's annual rate of home child care allowance is worked out as follows: (a) divide the person's ordinary income excess by 4; (b) take the result in paragraph (a) away from the maximum rate of allowance; the result is the person's annual rate of home child care allowance. "Division 6—Payment of home child care allowance Commencement of home child care allowance "930. Home child care allowance becomes payable to a person on the first day on which: (a) the person is qualified for the allowance; and (b) no provision of this Act makes home child care allowance not payable to the person. Note 1: For 'qualification' see section 906. Note 2: For the circumstances when home child care allowance is not payable see section 908. Payment by instalments "931. Subject to section 932, a full instalment of home child care allowance is payable to a person on each home child care allowance payday on which: (a) the person is qualified for the allowance; and (b) the allowance is payable to the person. Note: For 'home child care allowance payday' see subsection 23(1). Effect on instalments of backdating claim "932. If: (a) a person claims home child care allowance on a particular day (the 'claim day'); and (b) the person's provisional commencement day is before the claim day; and (c) there is a home child care allowance payday on or after the provisional commencement day and before the claim day; then: (d) no instalment of home child care allowance is payable on that payday; and (e) a full instalment of home child care allowance in respect of that payday is payable on the first home child care allowance payday on or after the claim day. Note 1: For 'provisional commencement day' see section 910. Note 2: For 'home child care allowance payday' see subsection 23(1). Calculation of amount of instalment "933.(1) The amount of an instalment of home child care allowance is the amount worked out by dividing the amount of the annual rate of the allowance by 26. "(2) If an amount that is payable to a person on a home child care allowance payday is not a multiple of 10 cents, the amount is, subject to subsection (3), to be increased or decreased to the nearest multiple of 10 cents. "(3) If the amount that is payable to a person on a home child care allowance payday is not a multiple of 10 cents but is a multiple of 5 cents, the amount is to be increased by 5 cents. "(4) If, apart from this subsection, the amount of an instalment of home child care allowance would be less than $1.00, the amount of the instalment is to be increased to $1.00. Note: For 'home child care allowance payday' see subsection 23(1). Instalments to be paid to person or nominee "934.(1) Subject to subsection (3), instalments of a person's home child care allowance are to be paid to that person. "(2) The Secretary may direct that the whole or a part of the instalments are to be paid to someone else on behalf of the person. "(3) If the Secretary makes a direction under subsection (2), the instalments are to be paid in accordance with the direction. Payment into bank account etc. "935.(1) An amount that is to be paid to a person under section 934 is to be paid in the manner set out in this section. "(2) Subject to subsections (4) and (7), the amount is to be paid to the credit of a bank account, credit union account or building society account nominated and maintained by the person. "(3) The account may be an account that is maintained by the person either alone or jointly or in common with another person. "(4) If the person has not nominated an account for the purposes of subsection (2), then, subject to subsections (5) and (6), the amount is not to be paid. "(5) If: (a) an amount has not been paid because of subsection (4); and (b) the person nominates an account for the purposes of subsection (2); the amount is to be paid into that account. "(6) The Secretary may direct that the whole or a part of the amount be paid to the person in a different way to that provided for by subsection (2). "(7) If the Secretary makes a direction under subsection (6), the home child care allowance is to be paid in accordance with the direction. Where home child care allowance payday would fall on public holiday etc. "936. If the Secretary is satisfied that an amount of home child care allowance that would normally be paid on a particular day cannot reasonably be paid on that day (because, for example, it is a public holiday or a bank holiday), the Secretary may direct that the amount be paid on an earlier day. Payment of home child care allowance after death "937.(1) If: (a) a home child care allowance is payable to a person; and (b) the person dies; and (c) at the date of the person's death the person has not received an amount of home child care allowance payable to him or her; and (d) another person applies to receive that amount; and (e) the application is made: (i) within 26 weeks after the death; or (ii) within a further period allowed by the Secretary in special circumstances; the Secretary may pay the amount to the person who, in the Secretary's opinion, is best entitled to it. "(2) If the Secretary pays an amount of home child care allowance under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of home child care allowance. Secretary may make a declaration where more than one person qualified for home child care allowance for the same child "938.(1) If the Secretary is satisfied that more than one person qualifies for home child care allowance in relation to the same child, the Secretary is to make a declaration: (a) stating that the Secretary is satisfied that each person is qualified for home child care allowance in relation to the child; and (b) specifying the share of the home child care allowance in relation to the child that each person is to receive. "(2) If the Secretary makes a declaration under subsection (1), the Secretary is to give each person involved notice of the declaration. Note: Until the declaration under this section is made, only one person can receive home child care allowance in relation to the child (see subsection 912(1)). "Division 7—Protection of home child care allowance Home child care allowance to be absolutely inalienable "939.(1) Subject to subsections (2) and (3) and section 1359, home child care allowance is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise. Payments to Commissioner of Taxation at person's request "(2) The Secretary may make deductions from the instalments of home child care allowance payable to a person if the person asks the Secretary: (a) to make the deductions; and (b) to pay the amounts to be deducted to the Commissioner of Taxation. Note: The Secretary must make deductions from a person's social security payment if requested by the Commissioner of Taxation (see section 1359). "(3) The Secretary may make deductions from the instalments of home child care allowance payable to a person if the person consents under section 1234A to the Secretary making the deductions. Note: Section 1234A enables the Secretary to recover a debt from a person other than the debtor if the person is receiving a social security payment. Effect of garnishee or attachment order "940.(1) If: (a) a person has an account with a financial institution; and (b) instalments of home child care allowance payable to the person (whether on the person's own behalf or not) are being paid to the credit of that account; and (c) a court order in the nature of a garnishee order comes into force in respect of the account; the court order does not apply to the saved amount (if any) in the account. "(2) The saved amount is worked out as follows: Method statement Step 1. Work out the total amount of home child care allowance payable to the person that has been paid to the credit of the account during the 4 week period immediately before the court order came into force. Step 2. Subtract from that amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount. "(3) This section applies to an account whether it is maintained by a person: (a) alone; or (b) jointly with another person; or (c) in common with another person. "Division 8—Recipient obligations Secretary may require recipient to give statement of recipient's tax file number "941. The Secretary may require the recipient to give the Secretary a written statement of the recipient's tax file number. Note 1: For the consequences of a failure to comply with the requirement see section 913. Note 2: In some cases the requirement can be satisfied by giving the Secretary a declaration by the recipient about the recipient's tax file number and an authority by the recipient to the Commissioner of Taxation to give the Secretary certain information about the recipient's tax file number (see subsections 913(2) and (3)). Secretary may require recipient to give statement of partner's tax file number "942. If a partner of a recipient of home child care allowance is in Australia, the Secretary may require the recipient to give the Secretary a written statement of the tax file number of the recipient's partner. Note 1: For the consequences of a failure to comply with the requirement see section 914. Note 2: In some cases the requirement can be satisfied by giving the Secretary a declaration by the partner about the partner's tax file number and an authority by the partner to the Commissioner of Taxation to give the Secretary certain information about the partner's tax file number (see subsections 914(2) and (3)). Note 3: The Secretary may waive the requirement in some cases (see subsection 914(4)). Secretary may require notice of the happening of an event or a change in circumstances "943.(1) The Secretary may give a person who is receiving home child care allowance a notice that requires the person to inform the Department if: (a) a specified event or change of circumstances occurs; or (b) the person becomes aware that a specified event or change of circumstances is likely to occur. "(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the home child care allowance. "(3) Subject to subsection (4), a notice under subsection (1): (a) must be in writing; and (b) may be given personally or by post; and (c) must specify how the person is to give the information to the Department; and (d) must specify the period within which the person is to give the information to the Department; and (e) must specify that the notice is a recipient notification notice given under this Act. Note: For 'recipient notification notice' see subsection 23(1). "(4) A notice under subsection (1) is not invalid merely because it fails to comply with paragraph (3)(c) or (e). "(5) The period specified under paragraph (3)(d) must end at least 14 days after: (a) the day on which the event or change of circumstances occurs; or (b) the day on which the person becomes aware that the event or change of circumstances is likely to occur. "(6) If a notice requires the person to inform the Department of any proposal by the person to leave Australia, subsection (5) does not apply to that requirement. "(7) A person must not, without reasonable excuse, refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice. Penalty: Imprisonment for 6 months. Note: Subsections 4B(2) and (3) of the Crimes Act 1914 allow a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. "(8) This section extends to: (a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and (b) all persons irrespective of their nationality or citizenship. Secretary may require person to give particular information relevant to payment of home child care allowance "944.(1) The Secretary may give a person who is receiving home child care allowance a notice that requires the person to give the Department a statement about a matter that might affect the payment of the home child care allowance to the person. "(2) Subject to subsection (3), a notice under subsection (1): (a) must be in writing; and (b) may be given personally or by post; and (c) must specify how the statement is to be given to the Department; and (d) must specify the period within which the person is to give the statement to the Department; and (e) must specify that the notice is a recipient statement notice given under this Act. Note: For 'recipient statement notice' see subsection 23(1). "(3) A notice under subsection (1) is not invalid merely because it fails to comply with paragraph (2)(c) or (e). "(4) The period specified under paragraph (2)(d) must end at least 14 days after the day on which the notice is given. "(5) A statement given in response to a notice under subsection (1) must be in writing and in accordance with a form approved by the Secretary. "(6) A person must not, without reasonable excuse, refuse or fail to comply with a notice under subsection (1) to the extent that the person is capable of complying with the notice. Penalty: Imprisonment for 6 months. Note: Subsections 4B(2) and (3) of the Crimes Act 1914 allow a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment. "(7) This section extends to: (a) acts, omissions, matters and things outside Australia whether or not in a foreign country; and (b) all persons irrespective of their nationality or citizenship. "Division 9—Continuation, variation and termination "Subdivision A—General Continuing effect of determination Entitlement determination "945.(1) A determination that: (a) a person's claim for home child care allowance is granted; or (b) home child care allowance is payable to a person; continues in effect until: (c) the payment ceases to be payable under section 946 or 947; or (d) a further determination in relation to the payment under section 951B or 951C has taken effect. Note 1: A determination to grant a claim for home child care allowance is made under section 923. Note 2: A determination that home child care allowance is payable to a person is necessary where the determination is to reverse an earlier determination to cancel or suspend the allowance (see section 951E). Note 3: If changes are made to a person's home child care allowance payments because of the operation of a computer program, a determination is taken to have been made in certain circumstances (see section 951D). Rate determination "(2) A determination of the rate of home child care allowance continues in effect until: (a) the home child care allowance becomes payable at a lower rate under section 949; or (b) a further determination in relation to the home child care allowance under section 951 or 951A has taken effect. Note: For paragraph (b) see also section 951D (changes to payments by computer). "Subdivision B—Automatic termination Automatic termination—recipient complying with section 943 notification obligations "946. If: (a) a person is given a notice under section 943; and (b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (the 'notification period'); and (c) the event or change in circumstances occurs; and (d) the person informs the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and (e) because of the occurrence of the event or change in circumstances: (i) the person ceases to be qualified for home child care allowance; or (ii) home child care allowance would, but for this subsection, cease to be payable to the person; and (f) home child care allowance is not cancelled before the end of the notification period; home child care allowance continues to be payable to the person until the end of the notification period and then ceases to be payable to the person. Automatic termination—recipient not complying with section 943 notification obligations "947. If: (a) a person is given a notice under section 943; and (b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (the 'notification period'); and (c) the event or change in circumstances occurs; and (d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and (e) because of the occurrence of the event or the change in circumstances: (i) the person ceases to be qualified for home child care allowance; or (ii) home child care allowance ceases to be payable to the person; home child care allowance ceases to be payable to the person immediately after the day on which the event or change in circumstances occurs. Changes to payments by computer following automatic termination "948. If: (a) a person is receiving home child care allowance on the basis of data in a computer; and (b) the home child care allowance is automatically terminated by the operation of a provision of this Act; and (c) the automatic termination is given effect to by the operation of a computer program approved by the Secretary stopping payment of the home child care allowance; there is taken to be a decision by the Secretary that the automatic termination provision applies to the person's home child care allowance. Note: The decision that is taken to have been made is a decision of an officer for the purposes of review by the Secretary (see sections 1239 and 1240) and the Social Security Appeals Tribunal (see section 1247). "Subdivision C—Automatic rate reduction Automatic rate reduction—recipient not complying with section 943 notification obligations "949. If: (a) a person is given a notice under section 943; and (b) the notice requires the person to inform the Department of the occurrence of an event or change in circumstances within a specified period (the 'notification period'); and (c) the event or change in circumstances occurs; and (d) the person does not inform the Department of the occurrence of the event or change in circumstances within the notification period in accordance with the notice; and (e) because of the occurrence of the event or change in circumstances, the person's rate of home child care allowance is to be reduced; home child care allowance becomes payable to the person at the reduced rate immediately after the day on which the event or change in circumstances occurs. Changes to payments by computer following automatic rate reduction "950. If: (a) a person is receiving home child care allowance on the basis of data in a computer; and (b) the home child care allowance is automatically reduced by the operation of a provision of this Act; and (c) the automatic reduction is given effect to by the operation of a computer program approved by the Secretary reducing the rate of payment of the home child care allowance; there is taken to be a decision by the Secretary that the automatic rate reduction provision applies to the person's home child care allowance. Note: The decision that is taken to have been made is a decision of an officer for the purposes of review by the Secretary (see sections 1239 and 1240) and the Social Security Appeals Tribunal (see section 1247). "Subdivision D—Determinations Rate increase determination "951. If the Secretary is satisfied that the rate at which home child care allowance is being, or has been, paid is less than the rate provided for by this Act, the Secretary is to determine that the rate is to be increased to the rate specified in the determination. Note: For the date of effect of a determination under this section see section 951F. Rate reduction determination "951A. If the Secretary is satisfied that the rate at which home child care allowance is being, or has been, paid is more than the rate provided for by this Act, the Secretary is to determine that the rate is to be reduced to the rate specified in the determination. Note 1: A determination under this section is not necessary in a case where an automatic rate reduction is produced by section 949 (see subsection 945(2)). Note 2: For the date of effect of a determination under this section see section 951G. Cancellation or suspension determination "951B. If the Secretary is satisfied that home child care allowance is being, or has been, paid to a person to whom it is not, or was not, payable under this Act, the Secretary is to determine that the home child care allowance is to be cancelled or suspended. Note 1: A determination under this section is not necessary in a case where an automatic termination is produced by section 946 or 947 (see subsection 945(1)). Note 2: For the date of effect of a determination under this section see section 951G. Cancellation or suspension for failure to comply with section 944, 1304 or 1305 notice "951C. If: (a) a person is given a notice under section 944, 1304 or 1305; and (b) the person does not comply with the requirements set out in the notice; the Secretary may determine that the home child care allowance is to be cancelled or suspended. Note 1: This section will not apply if section 951B applies. Note 2: For the date of effect of a determination under this section see section 951G. Changes to payments by computer "951D. If: (a) payment of home child care allowance to a person is based upon data in a computer; and (b) the rate of home child care allowance is increased or reduced, or home child care allowance is cancelled or suspended, because of the operation of a computer program approved by the Secretary; and (c) the program causes the change for a reason for which the Secretary could determine the change; the change is taken to have been made because of a determination by the Secretary for that reason. Note: The determination that is taken to have been made is a decision of an officer for the purposes of review by the Secretary (see sections 1239 and 1240) and the Social Security Appeals Tribunal (see section 1247). Resumption of payment after cancellation or suspension "951E.(1) If the Secretary: (a) cancels or suspends a person's home child care allowance under section 951B or 951C; and (b) reconsiders the decision to cancel or suspend; and (c) becomes satisfied that, because of the decision to cancel or suspend: (i) the person did not receive home child care allowance that was payable to the person; or (ii) the person is not receiving home child care allowance that is payable to the person; the Secretary is to determine that home child care allowance was or is payable to the person. "(2) The reconsideration referred to in paragraph (1)(b) might be a reconsideration on an application under section 1240 for review or a reconsideration on the Secretary's own initiative. Note: For the date of effect of a determination under this section see section 951F. "Subdivision E—Date of effect of determinations Date of effect of favourable determination "951F.(1) The day on which a determination under section 951 or 951E (the 'favourable determination') takes effect is worked out in accordance with this section. Notified decision—review sought within 13 weeks "(2) If: (a) a decision (the 'previous decision') is made in relation to a person's home child care allowance; and (b) a notice is given to the person advising the person of the making of the previous decision; and (c) the person applies to the Secretary under section 1240, within 13 weeks after the notice is given, for review of the previous decision; and (d) a favourable determination is made as a result of the application for review; and (e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect. Notified decision—review sought after 13 weeks "(3) If: (a) a decision (the 'previous decision') is made in relation to a person's home child care allowance; and (b) a notice is given to the person advising the person of the making of the previous decision; and (c) the person applies to the Secretary under section 1240, more than 13 weeks after the notice is given, for review of the previous decision; and (d) a favourable determination is made as a result of the application for review; and (e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the person sought the review. Decision not notified "(4) If: (a) a decision (the 'previous decision') is made in relation to a person's home child care allowance; and (b) no notice is given to the person advising the person of the making of the previous decision; and (c) the person applies to the Secretary under section 1240 for review of the previous decision; and (d) a favourable determination is made as a result of the application for review; and (e) subsections (6), (7) and (8) do not apply to the determination; the determination takes effect on the day on which the previous decision took effect. Notified change of circumstances "(5) If the favourable determination is made following a person having advised the Department of a change in circumstances, the determination takes effect on the day on which the advice was received or on the day on which the change occurred, whichever is the later. Other determinations "(6) In any other case, the favourable determination takes effect on the day on which the determination was made or on such later day or earlier day (not being a day more than 13 weeks before the determination was made) as is specified in the determination. Date of effect of adverse determination General "951G.(1) The day on which a determination under section 951A, 951B or 951C (the 'adverse determination') takes effect is worked out in accordance with this section. Note: If the adverse determination depends on a discretion or opinion and a person affected by the determination applies for review, the Secretary may continue payment pending the outcome of the review (see section 1241 (internal review) and section 1251 (review by Social Security Appeals Tribunal)). "(2) The adverse determination takes effect on: (a) the day on which the determination is made; or (b) if another day is specified in the determination—on that day. "(3) Subject to subsections (4), (5) and (6), the day specified under paragraph (2)(b) must be later than the day on which the determination is made. Contravention of Act "(4) If: (a) the person whose home child care allowance is affected by the adverse determination has contravened a provision of this Act (other than section 944, 1304, 1305, 1306 or 1307); and (b) the contravention causes a delay in making the determination; the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made. False statement or misrepresentation—suspension or cancellation "(5) If: (a) a person has made a false statement or misrepresentation; and (b) because of the false statement or misrepresentation, the home child care allowance has been paid to a person when it should have been cancelled or suspended; the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made. False statement or misrepresentation—rate reduction "(6) If: (a) a person has made a false statement or misrepresentation; and (b) because of the false statement or misrepresentation, the rate at which the home child care allowance was paid to a person was more than it should have been; the day specified under paragraph (2)(b) may be earlier than the day on which the determination is made. "Division 10—Bereavement "Subdivision A—Death of home child care allowance child Continuation of qualification for home child care allowance for 4 weeks where person's only home child care allowance child dies "951H. If: (a) a person is receiving home child care allowance in relation to a child; and (b) the child dies; and (c) the child was the only home child care allowance child of the person; the person is qualified for home child care allowance for the period of 4 weeks that starts on the day on which the child dies (the 'bereavement period'). Continued payment of home child care allowance "951I. If a person is qualified for payments under section 951H in relation to the death of a child, the person's home child care allowance rate, during the bereavement period, is to be calculated as if the child had not died. "Subdivision B—Death of recipient Death of recipient of home child care allowance during bereavement period "951J. If: (a) a person is receiving home child care allowance; and (b) the person dies; and (c) the person: (i) was qualified at the time of the person's death for payments under section 951H in relation to the death of a home child care allowance child; or (ii) would have been so qualified if the person had not died; there is payable to such person as the Secretary thinks appropriate an amount equal to the amount of home child care allowance that would have been payable to the person under section 9511 if the person had not died. Death of recipient of home child care allowance "951K.(1) If: (a) a person is receiving home child care allowance; and (b) the person dies; there is payable to any person that the Secretary thinks fit, the amount of home child care allowance that would have been payable to the deceased person on the next home child care allowance payday after his or her death if the person had not died. Note: For 'home child care allowance payday' see subsection 23(1). "(2) If an amount of home child care allowance is paid under subsection (1), the Commonwealth has no further liability to any person in respect of that amount of home child care allowance in respect of the deceased person.". Consequential amendments 4. The Principal Act is further amended as set out in Schedule 1. PART 3—PARTNER ALLOWANCE Insertion of new Part 5. After Part 2.