INSIGHTS: Doing the right thing: complying with Family Assistance Law for family day care

In December 2015, the Australian Federal Police reported the arrest of six people and restraint of assets worth $1.1 million in connection with alleged fraudulent conduct by family day care providers.

Family day care operators who are approved for the purposes of child care benefit and child care rebate (‘CCB Approval’) are subject to regulation under the A New Tax System (Family Assistance) (Administration) Act 1999 (‘Family Assistance Law’) as well as under the Children (Education and Care Services) National Law, Education and Care Services National Regulations, and the National Quality Framework.

Georgina Odell, Senior Associate with Meridian Lawyers advises: “From our work in the family day care sector, it seems clear that operators remain under scrutiny in terms of alleged non-compliances with CCB Approvals and the Family Assistance Law.

“Where non-compliances are alleged, it will generally be important for the family day care service to carry out a detailed investigation into the alleged grounds for a suspension or cancellation of the CCB Approval. The service needs to provide evidence to the Department as to why the Department is incorrect in its conclusions, or if the Department appears to be correct, what steps the service intends to take, or has taken to address the problem and to ensure that the problem does not arise again in the future.

“It is important that the response is provided in accordance with the Department’s timescales.”

Family Assistance Law obligations

It is a condition for a family day care service’s continued CCB Approval that the service does not contravene an obligation imposed by the Family Assistance Law. It is also a condition for continued CCB Approval that the service’s:

1. operation; and
2. provision of care; and
3. premises’ construction; and
4. premises’ equipment,

comply with all applicable requirements imposed by a law of the Commonwealth or the State or Territory where the service operates.

If the Department of Education is satisfied that an approved service has not complied, or is not complying with a condition for continued CCB Approval, it may (amongst other things):

1. vary the conditions of approval for the service;
2. impose additional conditions on the service;
3. suspend the service’s CCB Approval; or
4. cancel the service’s CCB Approval.

Before taking any of these steps the Department should provide the service with notice that it is considering doing so, set out the grounds and evidence for taking those steps, and invite the service to make written submissions to the Secretary within a certain period of time, stating why those steps should not be taken.

Given that family day care is provided in the homes of the individual educator rather than in a child care setting which is controlled on a day-to-day basis by the operator, it is essential for operators to have strong governance systems in place with educators so that the requirements of the National Law and the Family Assistance Law can be clearly communicated to educators and, if necessary, enforced.

Meridian Lawyers assists family day care operators (and other child care providers) to understand their obligations under the Family Assistance Law. We can also advise and represent you in responding to non-compliance investigations and notices under the Family Assistance Law, and in employment matters and governance arrangements.

For assistance with CCB Approvals and alleged non-compliances with the Family Assistance Law or to subscribe to Meridian Lawyers’ Child care insights newsletter, please contact Georgina Odell.