(4) For the purposes of subsection (1), the decision made by the > > Secretary, the Chief Executive Centrelink or the authorised review > > . officer is taken to be: > > (a) if the Secretary, the Chief Executive Centrelink or the > > authorised review officer affirms a decision - that decision as affirmed; and > > (b) if the Secretary, the Chief Executive Centrelink or the authorised review officer varies a decision - that decision as varied; and > > (c) if the Secretary, the Chief Executive Centrelink or the authorised review officer sets a decision aside and substitutes a new decision - the new decision.

9. The Tribunal is satisfied that on 10 January 2023 the applicant withdrew her application for formal review of the refusal of the carer payment and there has been no decision made pursuant to subsection 142(4). The refusal of the carer payment is not a reviewable decision.
10. On that basis that Tribunal is only considering review of the decision to reject the applicant's claim for carer allowance.

1. Section 953 of the Social Security Act 1991 relevantly sets out the qualification criteria for carer allowance for a single child as follows:

(1) A person is qualified for carer allowance for a disabled child (the > > care receiver) if: > > (a) the care receiver is a dependent child (disregarding > > subsection 5(3)) of the person; and > > (b) the care receiver is an Australian resident; and > > (d) because of the disability from which the care receiver is > > suffering, the care receiver receives care and attention on a > > daily basis from: > > (i) if the person is a member of a couple - the person, the > > person's partner or the person together with another > > person (whether or not the person's partner); or > > (ii) if the person is not a member of a couple - the person or > > the person together with another person; > > in a private home that is the residence of the person and the > > care receiver; and > > (e) either of the following applies: > > (i) the disability from which the care receiver is suffering is > > declared, under subsection 38E(3), to be a recognised > > disability for the purposes of this section; > > (ii) the person has been given a qualifying rating of intense > > under the Disability Care Load Assessment (Child) > > Determination for caring for the care receiver; and > > (f) the person is an Australian resident; and > > (g) the person satisfies the carer allowance income test under > > section 957A.

1. A dependent child under 16 is defined in subsection 5(2) of the Social Security Act as:

(2) Subject to subsections (3) and (6) to (8)1, a young person who has not turned 16 is a dependent child of another person (in this subsection called the adult) if: > > (a) the adult is legally responsible (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 > > (b) the young person: > > (i) is not a dependent child of someone else under paragraph (a) or (aa); and > > (ii) is wholly or substantially in the adult's care.

2. On the claim form, the applicant recorded that that she had no children under 18 in her care. She also recorded that her brother was not a dependent child and that she was not the legal guardian of her brother. At hearing, the applicant again confirmed that she did not have any dependent children under 18 years of age and that she was not the legal guardian for her brother. At the hearing the applicant's mother confirmed that she was legally responsible for the applicant's brother.
3. Section 953 of the Social Security Act provides a cumulative set of criteria which is required to qualify for carer allowance. The applicant's brother is not a dependant of the applicant because she is not legally responsible for his day-today care, welfare and development, his mother is. On that basis the applicant did not qualify for carer allowance as her brother did not meet the definition of dependent child as is required by subsection 5(2) of the Social Security Act. In effect that resolves the issues raised by this review application. However, the applicant has raised other matters which the Tribunal will deal with for completeness.
4. The applicant's mother stated at the hearing that her son required a high level of care, and she also had multiple disabilities. The applicant's mother required the applicant to help with both her mother's and her brother's care. The applicant's mother stated she is very reliant on the applicant and the applicant goes far beyond what an ordinary daughter might do.
5. The applicant's mother referred to section 198 of the Social Security Act as being relevant to the qualification for the applicant for carer allowance. The applicant is qualified for carer payment for her mother.[10] The applicant's mother relies on section 198 (9) of the Social Security Act which relevantly provides:

(9) For the purposes of paragraph (2)(d) and other references in this > > Part that relate to that paragraph, if a disabled adult is providing > > care of a dependent child of the adult at a particular time and > > another person is supervising the provision of that care at that time, > > the other person is taken personally to provide care of the adult and > > child at that time.

6. The applicant's mother submitted that it then follows that her daughter is deemed to be eligible for carers payment as she supervises her mother's care of her brother and is eligible to receive carers payment.
7. Subsection 198 (9) must be read in the context of the entire section. Section 198 is contained in part 2.5 of chapter 2 of the Social Security Act which deals with carer payments. Section 198 sets out the qualifications for carer payment, not for carer allowance. Subsection 198(9) is relevant to the whether a person provides constant care for the purposes of qualification of a carer payment and cannot be applied on its own making it relevant to carer allowance.
8. Moreover, section 954B of the Social Security Act provides that:

While: > > (a) a person is receiving a carer payment for caring for one or more persons (the care receiver or care receivers) other than: > > (i) a care receiver referred to in subparagraph 197D(1)(a)(i); or > > (ii) a care receiver referred to in paragraph 198(2)(a) or (d); and > > (b) the person is not, apart from this section, qualified for carer allowance for the care receiver or care receivers; > > the person is qualified for carer allowance for each care receiver. > > Note: For the effect of 2 people being qualified for carer allowance for the same care receiver, see sections 964 and 965.

9. In effect, a person receiving carer payment for caring for a child is also qualified for carer allowance for that child by virtue of section 954B if that person was not qualified by virtue of another provision under the Social Security Act. However, section 954B is not relevant here as the applicant is not receiving carer payment for her brother and that claim was rejected.
10. Similarly, the applicant's mother also made submissions in the alternative regarding the application of section 197A of the Social Security Act. That section is also contained in Part 2.5 of Chapter 2 of the Social Security Act and is only relevant to qualifications for carer payment and is not relevant to qualifications for carer allowance.
11. The applicant's mother had also made submissions regarding section 981 of the Social Security Act. At hearing she stated that those submissions were no longer pressed. The Tribunal notes that section 981 deals with circumstances in which multiple people qualify for carer allowance. The applicant's mother is receiving carer allowance for the applicant's brother. Section 981 provides:

Division 6 - Multiple qualification for carer allowance for same care receiver or receivers > > 981 Secretary may make declaration where 2 people are qualified for carer allowance for the same care receiver or care receivers > > (1) If the Secretary is satisfied that 2 people who are not members of the same couple are each qualified for carer allowance for the same care receiver or care receivers, the Secretary is to make a declaration: > > (a) stating that the Secretary is satisfied that the 2 people are each qualified for carer allowance for the care receiver or care receivers; and > > (b) specifying the share of the carer allowance for the care receiver or care receivers that each of the 2 people is to receive. > > (2) If the Secretary makes a declaration under subsection (1), the Secretary is to give each of the 2 people involved notice of the declaration.

12. Carer allowance can be shared by two people if the qualifications in section 981 are met. The applicant's mother is presently receiving the total of the carer's allowance. When the care is provided by a person and another person who is not the person's partner, each of the carers may qualify for carer allowance but will receive only a share of one carer allowance. On that basis section 981 is not relevant to the circumstances of this case.
13. In conclusion, the applicant did not qualify for carer allowance and the decision should be affirmed.

The Tribunal affirms the decision made on 28 November 2022 to reject the applicant's claim for carer allowance.